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EFF's Deeplinks Blog: Noteworthy news from around the internetruPolice Must Respect the Right of Citizens to Record Themhttps://www.eff.org/ru/deeplinks/2015/04/police-must-respect-right-citizens-record-them
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p class="MsoNormal"><span>“I’m asking all the citizens of North Charleston to continue taping.”</span></p>
<p class="MsoNormal"><span>That is what </span><span>Councilwoman </span><a href="http://www.postandcourier.com/article/20150407/PC16/150409468"><span>Dorothy Williams</span></a><span> said in response to the shooting death of Walter Scott. She and others recognize that the story would have been very different without </span><span>the video showing that a white police officer shot the unarmed black man several times in the back as he ran away from a traffic stop in North Charleston, South Carolina. Both </span><a href="http://www.nbcnews.com/storyline/walter-scott-shooting/how-walter-scott-shooting-would-have-been-reported-if-video-n340146"><span>NBC News</span></a><span> and </span><a href="http://www.huffingtonpost.com/2015/04/08/walter-scott-shooting-without-video_n_7024404.html"><span>Huffington Post</span></a><span> imagined the story absent the video. </span></p>
<p class="MsoNormal"><span>The tragic encounter was filmed by 23-year-old bystander </span><a href="http://www.nbcnews.com/nightly-news/video/witness-who-recorded-walter-scott-shooting-speaks-out-425158211698"><span>Feiden Santana</span></a><span>. After Santana released his video, the officer was arrested and </span><a href="http://www.washingtonpost.com/news/post-nation/wp/2015/04/07/south-carolina-police-officer-will-be-charged-with-murder-after-shooting/"><span>charged with murder</span></a><span>. Santana decided to share the video with Scott’s family because he knew it <a href="http://www.nytimes.com/2015/04/09/us/cellphone-video-of-michael-slager-shooting-walter-scott-is-seen-as-a-path-to-justice.html">contradicted</a> the official police account.</span><span></span></p>
<p class="MsoNormal"><span>This case exemplifies why an important component of police accountability is the ability of citizens to record officers carrying out their public duties. </span><span>Thankfully Santana was </span><span>not harassed for wielding his cell phone, but many people have been: officers have ordered people to stop recording, seized their devices, deleted the photos or video/audio recordings, and even arrested people.</span><span> </span><span></span></p>
<p class="MsoNormal"><span>The Justice Department report on the Ferguson Police Department issued last month chronicled a pattern of abusive and unconstitutional behavior by police officers when citizens tried to record them (</span><a href="http://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf"><span>see pages 26-28</span></a><span>). One officer arrested a woman after she began recording her husband’s arrest by the officer. As the report explains, “The officer became irate, declaring, ‘you don’t videotape me!’”</span></p>
<p class="MsoNormal"><span>Some federal appeals courts and the Justice Department have recognized the right of citizens to record the police, although the Supreme Court has not squarely ruled on the issue. Recent cases have specifically addressed recording the police in the age of the cell phone, which can record pictures, video and audio (with audio recording implicating </span><a href="https://www.rcfp.org/reporters-recording-guide"><span>wiretap laws</span></a><span>).</span></p>
<p class="MsoNormal"><span>In 2011, the U.S. Court of Appeals for the First Circuit issued an opinion in </span><a href="http://caselaw.findlaw.com/us-1st-circuit/1578557.html"><i><span>Glik v. Cunniffe</span></i></a><span>. Simon Glik had used his cell phone to record both video and audio of Boston police officers arresting another man. The officers then arrested Glik for making the recording, but the charges were later dropped. Glik sued the officers and the City of Boston for violating his constitutional rights.</span></p>
<p class="MsoNormal"><span>The First Circuit held that the First Amendment “unambiguously” protects the right of citizens to record the police – and government officials generally – carrying out their official duties in public. The court stated, “Ensuring the public’s right to gather information about their officials not only aids in the uncovering of abuses, but also may have a salutary effect on the functioning of government more generally.” </span></p>
<p class="MsoNormal"><span>The details of the case are important. Relying on the fact that Glik had stood about 10 feet away from the officers, the court stated, “Such peaceful recording of an arrest in a public space that does not interfere with the police officers’ performance of their duties is not reasonably subject to limitation.”</span></p>
<p class="MsoNormal"><span>The First Circuit also held that the Boston police violated the Fourth Amendment because they did not have probable cause to arrest Glik. Because Glik’s recording of the other man’s arrest included audio, the officers accused Glik of violating the Massachusetts wiretap statute. Massachusetts is an </span><a href="https://www.rcfp.org/reporters-recording-guide/state-state-guide/massachusetts"><span>“all-party consent” state</span></a><span>, meaning that all parties to a conversation must consent to it being recorded; whereas the </span><a href="https://www.law.cornell.edu/uscode/text/18/2511"><span>federal Wiretap Act</span></a><span> and other states’ laws are “one-party consent” statutes, meaning that only one party to a conversation needs to consent to it being recorded.</span></p>
<p class="MsoNormal"><span>The First Circuit noted that although the Massachusetts wiretap statute protects both private and public conversations (notwithstanding the First Amendment), it only prohibits “secret” audio recording where the parties to a conversation are unaware that they are being recorded. By contrast, the court found that the officers were on notice: Glik held his cell phone – “a device commonly known to record audio” – in “plain view” of the officers and one officer, in fact, knew that Glik was recording audio because the officer asked Glik if he was doing so and Glik replied in the affirmative.</span></p>
<p class="MsoNormal"><span>Thus, the court held that Glik did not violate the Massachusetts wiretap statute because he did not make the audio recording surreptitiously – even though the officers were engaged in a public “conversation” with the arrestee and no one consented to being recorded. (In 2014, a Massachusetts woman was charged with violating the wiretap statute for making a secret audio recording of her own arrest by hiding her smartphone in her purse, but the charge was </span><a href="http://www.masslive.com/news/index.ssf/2014/07/prosecutors_drop_case_against.html"><span>later dropped</span></a><span>.)</span></p>
<p class="MsoNormal"><span>In 2012, the U.S. Court of Appeals for the Seventh Circuit issued an opinion in </span><a href="http://www.aclu-il.org/wp-content/uploads/2012/05/Alvarez_ruling.pdf"><i><span>ACLU of Illinois v. Alvarez</span></i></a><span>. The ACLU challenged the constitutionality of the Illinois wiretap statute, which, like the Massachusetts law, protected both private and public conversations and required the consent of all parties to a conversation. Unlike the Massachusetts wiretap statute, however, the Illinois statute prohibited all audio recording, not only surreptitious audio recording. The ACLU of Illinois was fearful of prosecution because it intended to record police officers performing their official duties in public as part of an accountability program.</span></p>
<p class="MsoNormal"><span>The Seventh Circuit granted a preliminary injunction and held that the Illinois wiretap statute likely violated the First Amendment because it prohibited the audio recording – a “medium of expression” – of public conversations of police officers where no privacy interests existed. The court said that the Illinois legislature was not justified in “criminalizing this particular method of preserving and publishing the public communications of these public officials.” Though it was not central to the decision, the court also noted that the ACLU’s plan was to openly – not surreptitiously – record police officers in public.</span></p>
<p class="MsoNormal"><span>The Seventh Circuit was quick to emphasize, however, that the right to record the police is not a right to interfere with police operations. The court said, “Nothing we have said here immunizes behavior that obstructs or interferes with effective law enforcement or the protection of public safety.” Thus, “While an officer surely cannot issue a ‘move on’ order to a person <i>because</i> he is recording, the police may order bystanders to disperse for reasons related to public safety and order and other legitimate law enforcement needs.”</span></p>
<p class="MsoNormal"><span>In line with these federal cases, in March 2014, the Illinois Supreme Court held in two cases that the state wiretap statute was unconstitutional under the First Amendment precisely because it protected </span><a href="http://www.state.il.us/COURT/Opinions/SupremeCourt/2014/115776.pdf"><span>public conversations</span></a><span> where the parties had no expectation of privacy, and it criminalized even </span><a href="http://www.state.il.us/COURT/Opinions/SupremeCourt/2014/114852.pdf"><span>open recording</span></a><span> where the parties were on notice that their conversation was being recorded.<span> </span></span></p>
<p class="MsoNormal"><span>In December, the Illinois legislature sought to cure the constitutional deficiencies of the wiretap statute: it narrowed the law to make it a crime to record a <i>private</i> conversation in a <i>surreptitious</i> manner. While it may be difficult to determine when parties have a reasonable expectation of privacy and thus are having a “private” conversation even in a public place, we hope that this law will not be used to justify the arrest of Illinois citizens making audio recordings of police officers carrying out their official duties in public.</span></p>
<p class="MsoNormal"><span>Last year, the city of Baltimore </span><a href="http://articles.baltimoresun.com/2014-03-03/news/bs-md-ci-camera-settlement-20140303_1_christopher-sharp-police-city-solicitor"><span>settled</span></a><span> with Christopher Sharp for $250,000 after he filed a lawsuit alleging violations of his constitutional rights. Police officers had seized his cell phone and deleted his recordings, which included the arrest of one of his friends by the officers. </span></p>
<p class="MsoNormal"><span>In that case, to the delight of civil libertarians, the Justice Department twice weighed in to defend citizens’ rights: in a </span><span><a href="http://www.justice.gov/crt/about/spl/documents/Sharp_SOI_1-10-12.pdf"><span>statement of interest</span></a></span><span> filed in the district court, and in a </span><span><a href="http://www.justice.gov/crt/about/spl/documents/Sharp_ltr_5-14-12.pdf"><span>letter</span></a></span><span> sent to the Baltimore Police Department. In the statement of interest, the Justice Department wrote, “The First Amendment protects the rights of private citizens to record police officers during the public discharge of their duties.”</span></p>
<p class="MsoNormal"><span>The statement of interest also addressed the seizure of Sharp’s cell phone, explaining that under the Fourth Amendment the police cannot seize a cell phone (or other device) without a warrant <i>unless</i> the officer has probable cause to believe that the device holds evidence of a crime <i>and</i> there is an emergency (i.e., “exigent circumstances”) justifying a warrantless seizure. Even if the warrantless seizure is justified, the police may not <i>search</i> the device without a warrant based on probable cause – and they certainly may not delete files. </span></p>
<p class="MsoNormal"><span>If a person is arrested (which Sharp was not), the police may not search a cell phone simply based on the <a href="https://www.eff.org/cases/supreme-court-cases-cell-phone-searches">fact of the arrest</a> – they must generally obtain a warrant from a judge.</span></p>
<p class="MsoNormal"><span>In 2012, partially in response to the Sharp case, EFF joined a </span><a href="https://www.freepress.net/sites/default/files/stn-legacy/imce/right-to-record-letter.pdf"><span>letter</span></a><span> to Attorney General Eric Holder calling on law enforcement authorities to respect the First Amendment right of citizens to record the police. </span></p>
<p class="MsoNormal"><span>Unfortunately, Baltimore police apparently have not learned their lesson. In December, a woman filed a </span><a href="http://arstechnica.com/tech-policy/2014/12/cops-use-taser-on-woman-while-she-recorded-arrest-of-another-man/"><span>lawsuit</span></a><span> after she was allegedly pulled from her car and tased while attempting to record the arrest of another man. </span></p>
<p class="MsoNormal"><span>The District of Columbia Police Department is a good example of a robust policy directing officers to respect the right of citizens to record the police. Issued in 2012, the </span><a href="https://go.mpdconline.com/GO/GO_304_19.pdf"><span>heart of the policy</span></a><span> states, “The Metropolitan Police Department recognizes that members of the general public have a First Amendment right to video record, photograph, and/or audio record MPD members while MPD members are conducting official business or while acting in an official capacity in any public space, unless such recordings interfere with police activity.” </span></p>
<p><span>EFF urges more police departments and more courts to recognize the clear First Amendment right of citizens to record police officers carrying out their public duties.</span><b><span></span></b></p>
<p><b><span>See my colleague Nadia Kayyali’s <a href="https://www.eff.org/deeplinks/2015/04/want-record-cops-know-your-rights">related blog post</a> that includes tips and resources on how to safely record and interact with the police.</span></b></p>
</div></div></div><div class="field field-name-field-related-cases field-type-node-reference field-label-above"><div class="field-label">Related Cases:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/ru/cases/supreme-court-cases-cell-phone-searches">Riley v. California and United States v. Wurie</a></div></div></div><div class="share-links" style="margin-bottom:10px"><br/>Share this: <a href="https://twitter.com/intent/tweet?text=Police%20Must%20Respect%20the%20Right%20of%20Citizens%20to%20Record%20Them&amp;url=https%3A//www.eff.org/ru/deeplinks/2015/04/police-must-respect-right-citizens-record-them&amp;related=eff&amp;via=eff" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/twitter48.png" alt="Share on Twitter" /></a> <a href="https://www.facebook.com/share.php?t=Police%20Must%20Respect%20the%20Right%20of%20Citizens%20to%20Record%20Them&amp;u=https%3A//www.eff.org/ru/deeplinks/2015/04/police-must-respect-right-citizens-record-them" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/facebook48.png" alt="Share on Facebook" /></a> <a href="https://plus.google.com/share?url=https%3A//www.eff.org/ru/deeplinks/2015/04/police-must-respect-right-citizens-record-them" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/gplus48.png" alt="Share on Google+" /></a> <a href="https://sharetodiaspora.github.com/?title=Police%20Must%20Respect%20the%20Right%20of%20Citizens%20to%20Record%20Them&amp;url=https%3A//www.eff.org/ru/deeplinks/2015/04/police-must-respect-right-citizens-record-them" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/diaspora48.png" alt="Share on Diaspora" /></a> <a href="https://supporters.eff.org/join" style="background-color:#cc0000; color:#ffffff; text-decoration:none; cursor:pointer; padding:5px 8px; font-family:verdana; font-weight:bold; border-radius:8px; text-shadow: 1px 1px #660000; text-transform:uppercase;">Join EFF</a></div>Thu, 16 Apr 2015 18:15:49 +0000Sophia Cope85463 at https://www.eff.orgFree SpeechKnow Your RightsSearch Incident to ArrestMobile Privacy and Security Takes Two Steps Forward, One Step Back: 2014 in Reviewhttps://www.eff.org/ru/deeplinks/2014/12/2014-review-mobile-privacy-and-security-takes-two-steps-forward-one-step-back
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><a href="https://www.eff.org/deeplinks/2014/11/2014-year-review"><img src="/files/2014/12/19/2014-year-review.jpg" alt="" class="image-right" height="242" width="461" /></a>2014 has seen a flurry of events surrounding the issues of privacy and security when it comes to mobile devices. Here are some highlights.</p>
<p>EFF started the year by <a href="https://www.eff.org/deeplinks/2014/01/making-the-mobile-web-safer-with-https-everywhere">releasing HTTPS Everywhere on Firefox for Android</a>. Before, HTTPS Everywhere could only protect web browsing on desktop platforms, but with the release of HTTPS Everywhere for Firefox for Android, that same protection became available for Android devices as well.</p>
<p>June saw what was perhaps the biggest victory for smartphone privacy all year. Following several <a href="https://www.eff.org/deeplinks/2014/02/massachusetts-requires-warrants-cell-tracking">similar</a> <a href="https://www.eff.org/deeplinks/2014/02/two-new-decisions-strengthen-cell-phone-privacy-texas-and-washington">rulings</a> earlier in the year by various state courts, the U.S. Supreme Court ruled that <a href="https://www.eff.org/press/releases/supreme-court-sets-powerful-limits-cell-searches-fails-protect-internet-streaming">police must obtain a warrant in order to search a suspect’s cellphone</a>. While the importance of this victory cannot be overstated, there were still more victories to come.</p>
<p>For example, June also saw <a href="https://www.eff.org/deeplinks/2014/06/umbrella-hurricane-apple-limits-mobile-device-location-tracking">Apple announce that it would limit the ability of third-parties to physically track iPhones and iPads</a> by randomizing MAC addresses.<a class="see-footnote" id="footnoteref1_0xh4onb" title="While there has been some concern about the actual implementation, it’s at least a step in the right direction." href="#footnote1_0xh4onb">1</a> And in July, <a href="https://www.eff.org/deeplinks/2014/07/your-android-device-telling-world-where-youve-been">an EFF investigation showed that Android devices were announcing to the world which Wi-Fi networks they’d connected to in the past</a>, giving anyone listening in a history of where the device’s owner had been. What at first appeared to be a setback turned into a victory, though, when a Google employee submitted a patch that fixed the bug.</p>
<p>Another step forward came in September, when Apple announced that future iOS devices would feature disk-encryption enabled by default. (Google made a similar announcement for Android shortly afterwards.) This led to a predictable demand from law enforcement for encryption backdoors, which we explained would be a <a href="https://www.eff.org/deeplinks/2014/09/nine-epic-failures-regulating-cryptography">terrible</a>, <a href="https://www.eff.org/deeplinks/2014/10/even-golden-key-can-be-stolen-thieves-simple-facts-apples-encryption-decision">horrible</a>, <a href="https://www.eff.org/deeplinks/2014/10/eff-response-fbi-director-comeys-speech-encryption">very bad</a> idea.</p>
<p>Unfortunately, 2014 also saw some setbacks.</p>
<p>September saw <a href="https://www.eff.org/deeplinks/2014/08/blocking-consumer-choice-googles-dangerous-ban-privacy-security-app">Google ban the privacy and security app Disconnect Mobile from the Play Store</a>. Disconnect Mobile is designed to block non-consensual third-party tracking, much like EFF’s own Privacy Badger. Unfortunately non-consensual third-party tracking is used by a large fraction of mobile advertisers, a demographic Google appears to care for more than its users.</p>
<p>Perhaps the biggest setback of the year came in November, when security researchers showed how <a href="https://www.eff.org/deeplinks/2014/11/verizon-x-uidh">Verizon and AT&amp;T were injecting uniquely identifying headers</a> (effectively perma-cookies) into their customers’ traffic. While the public outcry <a href="https://www.eff.org/deeplinks/2014/11/att-ditches-tracking-header-program-verizon-still-refuses">led AT&amp;T to stop, Verizon refused to do so</a>.</p>
<p>Despite these setbacks, progress on mobile privacy was primarily positive in 2014, in terms of both how the law treats mobile devices, and in terms of privacy-enhancing mobile technologies.</p>
<p>There’s still plenty left to do in the coming year, though. EFF attorneys worked <a href="https://www.eff.org/deeplinks/2014/07/constitutionally-important-consensus-location-privacy">throughout</a> <a href="https://www.eff.org/deeplinks/2014/11/new-eff-brief-explains-why-cell-phone-location-records-are-private-and-government">2014</a> to convince the courts that police should have to get a warrant before demanding cellphone location records, and those cases will continue in 2015. We also intend to keep up the pressure on Verizon about its perma-cookie program. With your help, we can ensure that 2015 has just as many victories for mobile privacy as 2014.</p>
<p>This article is part of our <em>Year In Review</em> series; <a href="https://www.eff.org/deeplinks/2014/11/2014-year-review">read other articles</a> about the fight for digital rights in 2014. Like what you're reading? EFF is a member-supported nonprofit, powered by donations from individuals around the world. <a href="https://eff.org/last-call">Join us today</a> and defend free speech, privacy, and innovation.</p>
<ul class="footnotes"><li class="footnote" id="footnote1_0xh4onb"><a class="footnote-label" href="#footnoteref1_0xh4onb">1.</a> While there has been some concern about the actual implementation, it’s at least a step in the right direction.</li>
</ul></div></div></div><div class="share-links" style="margin-bottom:10px"><br/>Share this: <a href="https://twitter.com/intent/tweet?text=Mobile%20Privacy%20and%20Security%20Takes%20Two%20Steps%20Forward%2C%20One%20Step%20Back%3A%202014%20in%20Review&amp;url=https%3A//www.eff.org/ru/deeplinks/2014/12/2014-review-mobile-privacy-and-security-takes-two-steps-forward-one-step-back&amp;related=eff&amp;via=eff" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/twitter48.png" alt="Share on Twitter" /></a> <a href="https://www.facebook.com/share.php?t=Mobile%20Privacy%20and%20Security%20Takes%20Two%20Steps%20Forward%2C%20One%20Step%20Back%3A%202014%20in%20Review&amp;u=https%3A//www.eff.org/ru/deeplinks/2014/12/2014-review-mobile-privacy-and-security-takes-two-steps-forward-one-step-back" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/facebook48.png" alt="Share on Facebook" /></a> <a href="https://plus.google.com/share?url=https%3A//www.eff.org/ru/deeplinks/2014/12/2014-review-mobile-privacy-and-security-takes-two-steps-forward-one-step-back" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/gplus48.png" alt="Share on Google+" /></a> <a href="https://sharetodiaspora.github.com/?title=Mobile%20Privacy%20and%20Security%20Takes%20Two%20Steps%20Forward%2C%20One%20Step%20Back%3A%202014%20in%20Review&amp;url=https%3A//www.eff.org/ru/deeplinks/2014/12/2014-review-mobile-privacy-and-security-takes-two-steps-forward-one-step-back" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/diaspora48.png" alt="Share on Diaspora" /></a> <a href="https://supporters.eff.org/join" style="background-color:#cc0000; color:#ffffff; text-decoration:none; cursor:pointer; padding:5px 8px; font-family:verdana; font-weight:bold; border-radius:8px; text-shadow: 1px 1px #660000; text-transform:uppercase;">Join EFF</a></div>Sun, 04 Jan 2015 23:50:41 +0000Jeremy Gillula83638 at https://www.eff.orgCell TrackingEncrypting the WebLaw Enforcement AccessOnline Behavioral TrackingSearch Incident to ArrestSupreme Court Sets Powerful Limits for Cell Searches, Fails to Protect Internet Streaminghttps://www.eff.org/ru/press/releases/supreme-court-sets-powerful-limits-cell-searches-fails-protect-internet-streaming
<div class="field field-name-field-pr-subhead field-type-text field-label-hidden"><div class="field-items"><div class="field-item even">Justices Rule Changing Technology Demands Limits for Police but Requires Permission from TV Broadcasters</div></div></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>San Francisco - The U.S. Supreme Court issued two big rulings in important technology cases today.</p>
<p>In a groundbreaking decision on cell phone privacy, the court set powerful limits for police searches of cell phones, ruling in two consolidated cases that law enforcement must get a warrant before accessing the data on an arrested person's cell phone. The Electronic Frontier Foundation (EFF) filed amicus briefs in both of the cell phone search cases that were at issue in today's decision.</p>
<p>"These decisions are huge for digital privacy," EFF Staff Attorney Hanni Fakhoury said. "The court recognized that the astounding amount of sensitive data stored on modern cell phones requires heightened privacy protection, and cannot be searched at a police officer's whim. This should have implications for other forms of government electronic searches and surveillance, tightening the rules for police behavior and preserving our privacy rights in our increasingly digital world."</p>
<p>In its opinion, the court confirmed the importance of the warrant requirement, writing "Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant."</p>
<p>EFF also filed an amicus brief in American Broadcasting Companies v. Aereo, a case where TV-streaming company Aereo was innovating when and how consumers watch television programs. The court decided, incorrectly we believe, that Aereo needed copyright holders' permission to stream free over-the-air broadcast TV shows, creating new uncertainty for cloud storage systems and other new technologies that transmit content.</p>
<p>"With this ruling, the Supreme Court said that technology companies can't rely on the words of the Copyright Act—companies can follow the letter of the law but still get shut down if a court decides that their business is somehow similar to a cable company," said EFF Staff Attorney Mitch Stoltz. "This decision will make it harder for new independent media technologies to get launched and funded without the blessing of major media companies, and that's a loss for all of us."</p>
<p>EFF will have in-depth analysis of both these cases on its Deeplinks blog coming soon.</p>
<p>Contacts:</p>
<p>Hanni Fakhoury<br />
Staff Attorney<br />
Electronic Frontier Foundation<br />
hanni@eff.org</p>
<p>Mitch Stoltz<br />
Staff Attorney<br />
Electronic Frontier Foundation<br />
mitch@eff.org</p>
</div></div></div><div class="share-links" style="margin-bottom:10px"><br/>Share this: <a href="https://twitter.com/intent/tweet?text=Supreme%20Court%20Sets%20Powerful%20Limits%20for%20Cell%20Searches%2C%20Fails%20to%20Protect%20Internet%20Streaming&amp;url=https%3A//www.eff.org/ru/press/releases/supreme-court-sets-powerful-limits-cell-searches-fails-protect-internet-streaming&amp;related=eff&amp;via=eff" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/twitter48.png" alt="Share on Twitter" /></a> <a href="https://www.facebook.com/share.php?t=Supreme%20Court%20Sets%20Powerful%20Limits%20for%20Cell%20Searches%2C%20Fails%20to%20Protect%20Internet%20Streaming&amp;u=https%3A//www.eff.org/ru/press/releases/supreme-court-sets-powerful-limits-cell-searches-fails-protect-internet-streaming" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/facebook48.png" alt="Share on Facebook" /></a> <a href="https://plus.google.com/share?url=https%3A//www.eff.org/ru/press/releases/supreme-court-sets-powerful-limits-cell-searches-fails-protect-internet-streaming" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/gplus48.png" alt="Share on Google+" /></a> <a href="https://sharetodiaspora.github.com/?title=Supreme%20Court%20Sets%20Powerful%20Limits%20for%20Cell%20Searches%2C%20Fails%20to%20Protect%20Internet%20Streaming&amp;url=https%3A//www.eff.org/ru/press/releases/supreme-court-sets-powerful-limits-cell-searches-fails-protect-internet-streaming" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/diaspora48.png" alt="Share on Diaspora" /></a> <a href="https://supporters.eff.org/join" style="background-color:#cc0000; color:#ffffff; text-decoration:none; cursor:pointer; padding:5px 8px; font-family:verdana; font-weight:bold; border-radius:8px; text-shadow: 1px 1px #660000; text-transform:uppercase;">Join EFF</a></div>Wed, 25 Jun 2014 17:25:00 +0000Rebecca Jeschke81057 at https://www.eff.orgGovernment Plays Fast and Loose with Technology in Supreme Court Cell Phone Caseshttps://www.eff.org/ru/deeplinks/2014/04/government-plays-fast-and-loose-technology-supreme-court-cell-phone-cases
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p class="MsoNormal">The U.S. Supreme Court earlier this week heard oral argument in two cases involving whether the police, after arresting someone, can search his or her cell phone without a search warrant. Although the police have been allowed to do a limited search of a person after they’ve been arrested, this exception to the Fourth Amendment’s warrant requirement was never intended to cover the massive amounts of sensitive information on a cell phone. But as the oral arguments made clear, the government is relying on dangerous misconceptions about cell phone technology in an attempt to justify a significant privacy intrusion.</p>
<p class="MsoNormal"><b>The Issues Before the Supreme Court</b></p>
<p class="MsoNormal">After the police arrest someone,<i> </i>they're allowed to search the arrestee's person and the items within their immediate control without a search warrant for two reasons: first to make sure the person is not hiding a weapon that can harm officers, and second, to ensure that any evidence that could be lost or destroyed is secured. Under the search incident to arrest exception, the police do not need to make any showing that there were <i>actual </i>threats to officer safety or evidence destruction. That is, if the item they want to search is on the person (meaning in their pockets or purse) or within reaching distance at the time of arrest, the police get to search, period.</p>
<p class="MsoNormal">At issue before the Supreme Court is how this doctrine applies to the modern cell phone. Both cases involve a police search of a cell phone after they had arrested someone for a crime unconnected with the phone. In <i>Riley v. California</i>, the California appeals court <a href="http://scholar.google.com/scholar_case?case=6124673921923766275">found</a> a warrantless search of a smartphone appropriate under the exception, ruling that the nature of the item to be searched —and ultimately the amount of information carried on a cell phone—was irrelevant to deciding whether the exception applied. But in <i>United States v. Wurie</i>, the federal First Circuit Court of Appeals <a href="http://scholar.google.com/scholar_case?q=728+f.3d+1&amp;hl=en&amp;as_sdt=2003&amp;case=16084637220099838131&amp;scilh=0">found</a> the breadth of information stored on a cell phone <i>did</i> matter and the exception didn't apply to a search of a simple flip phone. The Supreme Court had <a href="http://scholar.google.com/scholar_case?q=414+us+218&amp;hl=en&amp;as_sdt=2006&amp;case=5387812968771120977&amp;scilh=0">ruled</a> in 1973 that police could search a pack of cigarettes found in an arrestee's jacket pocket and so to some extent, the issue in front of the Court now was whether a cellphone was similar enough to a pack of cigarettes that the police could search it too. </p>
<p class="MsoNormal">Together with the Center for Democracy and Technology, we <a href="https://www.eff.org/press/releases/supreme-court-must-set-limits-cell-phone-searches">filed</a> <a href="https://www.eff.org/document/amicus-brief-supreme-court"><i>amicus</i> briefs</a> in both <i>Riley</i> and <i>Wurie</i>, arguing that the amount of information stored on a modern cell phone is so great, that it was nothing like a pack of cigarettes and should be off limits to police without a search warrant. In other words, the technology matters for the constitutional issue before the court.</p>
<p class="MsoNormal"><b>Mischaracterizing the Technological Reality</b></p>
<p class="MsoNormal">At the argument on Tuesday, it was clear that the governments of both California and the United States agreed that technology mattered for the constitutional issue too, but in a vastly different way. First, California's Solicitor General <a href="http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-132_2co3.pdf">argued</a> that when you carry a cell phone, you assume the risk that your data could be searched at any time: </p>
<blockquote><p class="MsoNormal">But what we are saying is that people do make choices, and those choices have consequences. And the consequence of carrying things on your person has always been that if you are arrested, the police will be able to examine that to see if it is evidence of crime. </p>
</blockquote>
<p class="MsoNormal">In a country where people can be arrested for not wearing a <a href="http://scholar.google.com/scholar_case?case=7758058036179057649&amp;q=532+U.S.+318&amp;hl=en&amp;as_sdt=2006">seat belt</a> and attempts to <a href="http://online.wsj.com/news/articles/SB10001424052702304319804576389601079728920">count</a> the number of federal criminal laws (let alone state criminal laws) have failed because there are too many to count, everyone's phone is fair game under this premise. But taking advantage of technological advancements shouldn't require a person to <a href="http://www.nytimes.com/roomfordebate/2012/12/11/privacy-and-the-apps-you-download/privacy-and-technology-can-and-should-co-exist">sacrifice</a> constitutional privacy protection, especially when a cell phone carries far more information than any person could even physically carry on them in non-digital form.</p>
<p class="MsoNormal"></p>
<p class="MsoNormal">More problematic than California's bogus assumption of risk theory was the federal government playing fast and loose with the role encryption plays in the modern world. While encryption is a universally good thing— a way to safeguard information and keep it private—the government views it as a threat. </p>
<blockquote><p class="MsoNormal">Well, I think that there is clearly the technology available and growing technology to wipe phones remotely. But the other critical problem that comes back to Justice Ginsburg's point about getting a warrant is encryption technology is increasingly being deployed in cell phones. That is something that clearly is on the rise. And when a phone is turned off or the lock kicks in and the phone encrypts, it can be almost impossible to get into it. </p>
</blockquote>
<p class="MsoNormal">This argument makes no technical or legal sense.</p>
<p class="MsoNormal">First, the government assumes that a specific phone actually has a lock and that it is actually deployed. But a Consumer Reports <a href="http://www.consumerreports.org/cro/news/2014/04/smart-phone-thefts-rose-to-3-1-million-last-year/index.htm">survey</a> from last week found that only 36 percent of cell phone users have a four-digit PIN setup on their phone and that 34 percent of smartphone owners took no security measures at all. In those instances where the phone has a PIN, the government assumes a scenario where officers get the phone in the brief time frame before the phone locks. But a phone could be sitting idle in a person's pocket or next to them in a car, meaning officers wouldn't be able to bypass the PIN screen anyway.</p>
<p class="MsoNormal">Second, the government conflates the issue of <i>if </i>they can search with <i>how </i>they can search. If the search incident to arrest exception applies, the police are legally permitted to search the phone. But the exception does not create a right to an effective search. If the police encounter a phone they cannot access because it is locked (and they don't know the PIN) or the contents are encrypted, then the exception is simply irrelevant as to what the police can do next. They can ask the arrestee if he agrees to allow the police to search (and he can and <a href="https://www.eff.org/wp/know-your-rights">should</a> say no if he wants) or try to brute force their way into the phone. And as we've <a href="https://www.eff.org/press/releases/appeals-court-upholds-constitutional-right-against-forced-decryption">successfully</a> argued elsewhere, they cannot compel the arrestee to decrypt or unlock the phone. But the incident to arrest exception has no bearing on these issues at all. </p>
<p class="MsoNormal">Related to this is the government's paranoia regarding the ability of a phone to be remotely deleted, a concern it consistently raised as a reason to allow police to search immediately after arrest. This paranoia is self-made. There is little empirical evidence to show that the majority of smartphones are capable of being remotely wiped. If not even a majority of Americans have a four-digit PIN on their phone, it's doubtful most people understand how to remotely wipe a phone. And it has unsurprisingly been law enforcement itself pushing to have cell phones designed with "kill switches" built in, ostensibly as a means to deter phone theft, that creates the very justification the government needs to bypass the warrant requirement. If the government were truly concerned about maintaining the integrity of a cell phone, it would make more sense for them to secure the phone instead of searching it in the field. There are plenty of ways to prevent remote wiping, whether by placing the phone in a <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2313911">Faraday bags</a>, removing the battery or SIM card or powering the phone off, eliminating the justification for searching without judicial oversight.</p>
<p class="MsoNormal">Ultimately, this all matters because the government is using these mischaracterizations to argue for a general rule that will be applied to all phones in all arrests. If the Court accepts this argument, then police can search any phone, regardless of whether it has a PIN or encryption or no security at all. That will be the vast majority of phones the police encounter. The Court should base its ruling, which will impact millions of Americans’ cell phone privacy, on facts, not hyperbole.</p>
<p class="MsoNormal">During oral argument, the Court seemed to demonstrate greater awareness of the digital reality than the government. Justice Kagan remarked "people carry their entire lives on cell phones. That's not a marginal case. That's the world we live in." In a different setting, she <a href="http://www.huffingtonpost.com/2013/08/20/supreme-court-tech-savvy_n_3786296.html">noted</a> that the justices might not be “the most technologically sophisticated people.” Fortunately, it doesn't take technological sophistication to figure out that the only way to protect privacy in the modern world is to prohibit the police from intruding into a cell phone without a warrant.</p>
</div></div></div><div class="field field-name-field-related-cases field-type-node-reference field-label-above"><div class="field-label">Related Cases:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/ru/cases/supreme-court-cases-cell-phone-searches">Riley v. California and United States v. Wurie</a></div></div></div><div class="share-links" style="margin-bottom:10px"><br/>Share this: <a href="https://twitter.com/intent/tweet?text=Government%20Plays%20Fast%20and%20Loose%20with%20Technology%20in%20Supreme%20Court%20Cell%20Phone%20Cases&amp;url=https%3A//www.eff.org/ru/deeplinks/2014/04/government-plays-fast-and-loose-technology-supreme-court-cell-phone-cases&amp;related=eff&amp;via=eff" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/twitter48.png" alt="Share on Twitter" /></a> <a href="https://www.facebook.com/share.php?t=Government%20Plays%20Fast%20and%20Loose%20with%20Technology%20in%20Supreme%20Court%20Cell%20Phone%20Cases&amp;u=https%3A//www.eff.org/ru/deeplinks/2014/04/government-plays-fast-and-loose-technology-supreme-court-cell-phone-cases" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/facebook48.png" alt="Share on Facebook" /></a> <a href="https://plus.google.com/share?url=https%3A//www.eff.org/ru/deeplinks/2014/04/government-plays-fast-and-loose-technology-supreme-court-cell-phone-cases" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/gplus48.png" alt="Share on Google+" /></a> <a href="https://sharetodiaspora.github.com/?title=Government%20Plays%20Fast%20and%20Loose%20with%20Technology%20in%20Supreme%20Court%20Cell%20Phone%20Cases&amp;url=https%3A//www.eff.org/ru/deeplinks/2014/04/government-plays-fast-and-loose-technology-supreme-court-cell-phone-cases" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/diaspora48.png" alt="Share on Diaspora" /></a> <a href="https://supporters.eff.org/join" style="background-color:#cc0000; color:#ffffff; text-decoration:none; cursor:pointer; padding:5px 8px; font-family:verdana; font-weight:bold; border-radius:8px; text-shadow: 1px 1px #660000; text-transform:uppercase;">Join EFF</a></div>Thu, 01 May 2014 22:08:23 +0000Hanni Fakhoury80105 at https://www.eff.orgLegal AnalysisKnow Your RightsPrivacySearch Incident to ArrestSupreme Court Must Set Limits on Cell Phone Searcheshttps://www.eff.org/ru/press/releases/supreme-court-must-set-limits-cell-phone-searches
<div class="field field-name-field-pr-subhead field-type-text field-label-hidden"><div class="field-items"><div class="field-item even">Changing Technology Demands New Rules for Police</div></div></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>San Francisco - The Electronic Frontier Foundation (EFF) asked the U.S. Supreme Court Monday to set limits on warrantless searches of cell phones, arguing in two cases before the court that changing technology demands new guidelines for when the data on someone's phone can be accessed and reviewed by investigators.</p>
<p>The amicus briefs were filed in Riley v. California and U.S. v. Wurie. In both cases, after arresting a suspect, law enforcement officers searched the arrestee's cell phone without obtaining a warrant from a judge. Historically, police have been allowed some searches "incident to arrest" in order to protect officers' safety and to preserve evidence. However, in the briefs filed Monday, EFF argues that once a cell phone has been seized, the police should be required to get a search warrant to look through the data on the phone.</p>
<p>"Allowing investigators to search a phone at this point – after the device has been secured by law enforcement but before going to a judge and showing probable cause – is leaving 21st Century technology outside the protections of the Fourth Amendment," said EFF Staff Attorney Hanni Fakhoury. "If we're going to truly have privacy in the digital age, we need clear, common-sense guidelines for searches of digital devices, with meaningful court oversight of when and how these searches can be conducted."</p>
<p>In the not-so-distant past, our pockets and purses carried only limited information about our lives. But in the age of the smartphone, we are walking around with a complete, detailed history of our work schedules, our medical concerns, our political beliefs, and our financial situations. Our phones include pictures of family gatherings, videos of friends, apps that help manage our health and our money, and email and text messages from both our personal and professional lives.</p>
<p>"Our phones include an extraordinary amount of sensitive information – our past, our present, our plans for the future," said Fakhoury. "We can't let investigators rummage through this data on a whim. It's time for the Supreme Court to recognize the important role that judicial oversight must play in searches of cell phones incident to arrest."</p>
<p>Today's brief was filed in conjunction with the Center for Democracy and Technology. The brief was authored with the assistance of Andrew Pincus of Mayer Brown LLP and the Yale Law School Supreme Court Clinic.</p>
<p>For the full brief filed in Riley and Wurie:<br /><a href="https://www.eff.org/document/amicus-brief-supreme-court">https://www.eff.org/document/amicus-brief-supreme-court</a></p>
<p>For more on search incident to arrest:<br /><a href="https://www.eff.org/issues/search-incident-arrest">https://www.eff.org/issues/search-incident-arrest</a></p>
<p>Contact:</p>
<p>Hanni Fakhoury<br />
Staff Attorney<br />
Electronic Frontier Foundation<br />
hanni@eff.org</p>
</div></div></div><div class="share-links" style="margin-bottom:10px"><br/>Share this: <a href="https://twitter.com/intent/tweet?text=Supreme%20Court%20Must%20Set%20Limits%20on%20Cell%20Phone%20Searches&amp;url=https%3A//www.eff.org/ru/press/releases/supreme-court-must-set-limits-cell-phone-searches&amp;related=eff&amp;via=eff" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/twitter48.png" alt="Share on Twitter" /></a> <a href="https://www.facebook.com/share.php?t=Supreme%20Court%20Must%20Set%20Limits%20on%20Cell%20Phone%20Searches&amp;u=https%3A//www.eff.org/ru/press/releases/supreme-court-must-set-limits-cell-phone-searches" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/facebook48.png" alt="Share on Facebook" /></a> <a href="https://plus.google.com/share?url=https%3A//www.eff.org/ru/press/releases/supreme-court-must-set-limits-cell-phone-searches" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/gplus48.png" alt="Share on Google+" /></a> <a href="https://sharetodiaspora.github.com/?title=Supreme%20Court%20Must%20Set%20Limits%20on%20Cell%20Phone%20Searches&amp;url=https%3A//www.eff.org/ru/press/releases/supreme-court-must-set-limits-cell-phone-searches" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/diaspora48.png" alt="Share on Diaspora" /></a> <a href="https://supporters.eff.org/join" style="background-color:#cc0000; color:#ffffff; text-decoration:none; cursor:pointer; padding:5px 8px; font-family:verdana; font-weight:bold; border-radius:8px; text-shadow: 1px 1px #660000; text-transform:uppercase;">Join EFF</a></div>Tue, 11 Mar 2014 16:03:46 +0000Rebecca Jeschke79323 at https://www.eff.orgTwo New Decisions Strengthen Cell Phone Privacy in Texas and Washingtonhttps://www.eff.org/ru/deeplinks/2014/02/two-new-decisions-strengthen-cell-phone-privacy-texas-and-washington
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>On back-to-back days this week, residents in Texas and Washington received some extra legal protection for the contents of their cell phones. These decisions, while only binding on law enforcement within each respective state, could play an important role on the ongoing debate on cell phone privacy specifically, and applying legal protections against unreasonable searches and seizures to new technologies generally. </p>
<p><strong><img src="/files/2014/02/28/pants.png" alt="" class="align-right" height="218" width="381" />Texas: a cellphone is not like a pair of pants or shoes</strong></p>
<p>First, the Texas Court of Criminal Appeals ruled in <a href="https://www.eff.org/cases/state-v-granville"><em>State v. Granville</em></a> that an inmate locked in jail maintained an expectation of privacy in the contents of his cell phone even when the phone was out of his custody and in the control of the jail guards. A Huntsville police officer arrested high-school student Anthony Granville on a misdemeanor charge, and he was locked up in jail. Three hours after his arrest, a different officer than the one who arrested him retrieved Granville's phone from the evidence locker and, without a warrant, looked through the contents of the phone for evidence of an unrelated crime.</p>
<p>The government attempted to justify the search by claiming that, similar to clothing worn by an inmate, once the phone was in the control of the jail officials, Granville no longer had any expectation of privacy in its contents. We <a href="https://www.eff.org/deeplinks/2013/04/eff-texas-high-court-cell-phone-isnt-pair-pants">filed</a> an <a href="https://www.eff.org/document/granville-amicus-brief">amicus brief</a> explaining that a cell phone really isn't anything like a pair of pants given the immense amount of data stored on the phone, meaning that police needed to get a warrant to search it. The high court <a href="https://www.eff.org/document/granville-opinion">agreed with us</a>, with Judge Cathy Cochran writing unequivocally:</p>
<blockquote><p>[W]e conclude, as did the court of appeals, that a cell phone is not like a pair of pants or a shoe. Given modern technology and the incredible amount of personal information stored and accessible on a cell phone, we hold that a citizen does not lose his reasonable expectation of privacy in the contents of his cell phone merely because that cell phone is being stored in a jail property room.</p></blockquote>
<p><strong>Washington: A text message is like a phone call or letter</strong></p>
<p>The next day, the Washington Supreme Court issued a pair of decisions in <em>State v. Hinton </em>and <em>State v. Roden</em> finding that police violated state law when, after seizing a cell phone from a suspect during a drug investigation, it monitored and responded to incoming text messages, arranging drug deals with defendants Hinton and Roden.</p>
<p>The state argued that neither Shawn Hinton or Jonathan Roden had an expectation of privacy in the text messages once they were sent to someone else's phone. Instead, the state argued both men had assumed the risk that their messages could be intercepted by someone else or that the person they thought they were communicating with was really someone else. EFF <a href="https://www.eff.org/press/releases/can-police-read-text-messages-without-warrant">filed</a> <a href="https://www.eff.org/document/hinton-opinion">amicus</a> <a href="https://www.eff.org/document/roden-opinion">briefs</a> in both cases, explaining that the society's expectation that police won't intercept their phone calls or postal letters extends to the 21st century equivalent, the text message. The court <a href="https://www.eff.org/document/hinton-opinion">agreed</a>, ruling that police were unauthorized to intercept the conversation, noting that </p>
<blockquote><p>unlike letters, which are generally delivered to the home where they remain protected from intrusion, text messages are delivered to a recipient's cell phone instantaneously and remain susceptible to exposure because of a cell phone's mobility. Just as subjecting a letter to potential interception while in transit does not extinguish a sender's privacy interest in its contents, neither does subjecting a text communication to the possibility of exposure on someone else's phone.</p></blockquote>
<p><strong>Cell phone privacy spreading across the country</strong></p>
<p>These decisions come at a time when cell phone privacy is a hot topic in courts across the country and hopefully the strides made in Texas and Washington will be felt elsewhere. <a href="https://www.eff.org/deeplinks/2013/06/ma-high-court-recognizes-right-be-free-gps-surveillance">State</a> <a href="https://www.eff.org/deeplinks/2009/05/victory-location-pri">courts</a> are taking a more aggressive approach to safeguarding privacy than federal courts, especially when it comes to law enforcement searching and tracking cell phones. Last week, the Massachusetts Supreme Judicial Court <a href="https://www.eff.org/deeplinks/2014/02/massachusetts-requires-warrants-cell-tracking">ruled</a> that police needed a search warrant to obtain historical cell site records from a cell phone provider. New Jersey's Supreme Court <a href="http://scholar.google.com/scholar_case?case=17491858830599072236&amp;hl=en&amp;as_sdt=6&amp;as_vis=1&amp;oi=scholarr">reached</a> the same result last year. The Rhode Island Supreme Court <a href="http://www.providencejournal.com/breaking-news/content/20140207-privacy-in-text-messages-is-weighed-in-murder-case.ece">heard</a> argument in early February in <a href="https://www.eff.org/cases/state-v-patino"><em>State v. Patino</em></a>, a case similar to <em>Hinton</em> and <em>Roden</em>, that involves whether a person has an expectation of privacy in text messages found on someone else's phone. State <a href="https://www.eff.org/deeplinks/2013/12/2013-review-states-stepping-digital-privacy-protection">legislatures</a> have been active too, with Maine and Montana <a href="https://www.eff.org/deeplinks/2013/07/promising-developments-location-privacy">passing</a> legislation last year protecting cell phone location data, and <a href="http://mgaleg.maryland.gov/webmga/frmMain.aspx?pid=billpage&amp;stab=01&amp;id=sb0698&amp;tab=subject3&amp;ys=2014RS">Maryland</a> and <a href="https://docs.legis.wisconsin.gov/2013/related/proposals/sb432">Wisconsin</a> considering similar legislation this year. This week's decisions could also go a long way to bringing the law into the 21st century. </p>
<p>Most importantly, the topic of cell phone privacy will shortly be before the U.S. Supreme Court, which is <a href="http://www.nytimes.com/2014/01/18/us/supreme-court-to-consider-limits-of-cellphone-searches.html">considering</a> two cases this term on whether police can search a person's cell phone incident to their arrest. The U.S. Supreme Court would be wise to follow the lead of Texas and Washington. This week's decisions both appreciated the breadth of data stored on a cell phone meant it was foolish to analogize to physical items like a pair of pants or old cases involving antiquated technologies. They rejected the false notion that the mere act of exposing a phone or text message to someone else gives the government free reign to intrude and search through the reams of data on a cell phone. Hopefully the U.S. Supreme Court will make the same conclusions, ensuring that the right to privacy in a cell phone isn't just a local right but a national one.</p>
</div></div></div><div class="field field-name-field-related-cases field-type-node-reference field-label-above"><div class="field-label">Related Cases:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/ru/cases/washington-state-text-message-privacy-cases">Washington state text message privacy cases</a></div><div class="field-item odd"><a href="/ru/cases/state-v-patino">State v. Patino</a></div><div class="field-item even"><a href="/ru/cases/state-v-granville">State v. Granville</a></div></div></div><div class="share-links" style="margin-bottom:10px"><br/>Share this: <a href="https://twitter.com/intent/tweet?text=Two%20New%20Decisions%20Strengthen%20Cell%20Phone%20Privacy%20in%20Texas%20and%20Washington&amp;url=https%3A//www.eff.org/ru/deeplinks/2014/02/two-new-decisions-strengthen-cell-phone-privacy-texas-and-washington&amp;related=eff&amp;via=eff" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/twitter48.png" alt="Share on Twitter" /></a> <a href="https://www.facebook.com/share.php?t=Two%20New%20Decisions%20Strengthen%20Cell%20Phone%20Privacy%20in%20Texas%20and%20Washington&amp;u=https%3A//www.eff.org/ru/deeplinks/2014/02/two-new-decisions-strengthen-cell-phone-privacy-texas-and-washington" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/facebook48.png" alt="Share on Facebook" /></a> <a href="https://plus.google.com/share?url=https%3A//www.eff.org/ru/deeplinks/2014/02/two-new-decisions-strengthen-cell-phone-privacy-texas-and-washington" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/gplus48.png" alt="Share on Google+" /></a> <a href="https://sharetodiaspora.github.com/?title=Two%20New%20Decisions%20Strengthen%20Cell%20Phone%20Privacy%20in%20Texas%20and%20Washington&amp;url=https%3A//www.eff.org/ru/deeplinks/2014/02/two-new-decisions-strengthen-cell-phone-privacy-texas-and-washington" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/diaspora48.png" alt="Share on Diaspora" /></a> <a href="https://supporters.eff.org/join" style="background-color:#cc0000; color:#ffffff; text-decoration:none; cursor:pointer; padding:5px 8px; font-family:verdana; font-weight:bold; border-radius:8px; text-shadow: 1px 1px #660000; text-transform:uppercase;">Join EFF</a></div>Fri, 28 Feb 2014 23:43:28 +0000Hanni Fakhoury79092 at https://www.eff.orgLegal AnalysisPrivacySearch Incident to ArrestEFF Asks Court to Review California's Warrantless DNA Collection Anewhttps://www.eff.org/ru/deeplinks/2013/10/eff-asks-court-review-californias-warrantless-dna-collection-anew
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>When it comes to searching the most sensitive part of our bodies—our DNA—the Fourth Amendment's prohibition against unreasonable searches and seizures should be a strong bulwark, keeping the government out of our most personal and private biological information. But in the last few years, those protections have been eroded as courts throughout the country, including the US Supreme Court, have approved of the warrantless DNA collection of people arrested for crimes—individuals who are presumed to be innocent in the eyes of the law. A new <a href="https://www.eff.org/document/haskell-supplemental-amicus-brief">amicus brief</a> we filed on Monday argues that these decisions don't mean the complete death of Fourth Amendment protection from DNA collection.</p>
<p>This summer, the Supreme Court issued its <a href="https://www.eff.org/deeplinks/2013/06/junk-decision-warrantless-dna-collection">disappointing</a> <a href="http://scholar.google.com/scholar_case?q=133+s.ct.+1958&amp;hl=en&amp;as_sdt=2003&amp;case=3234257148722545343&amp;scilh=0">decision</a> in <em>Maryland v. </em><em>King</em>, approving Maryland's warrantless DNA collection scheme from pretrial arrestees. The court reasoned that the purpose of collecting DNA is "identification," or to make sure the police had arrested the right person, noting that collecting DNA was similar to the routine police practice of collecting a fingerprint. </p>
<p>Following the Supreme Court ruling, the Ninth Circuit Court of Appeals asked for amicus briefs to address what impact <em>King</em> would have on the court's review of <a href="http://aclunc.org/cases/active_cases/haskell_v._brown.shtml"><em>Haskell v. Harris</em></a> a case in which the ACLU of Northern California is challenging Proposition 69, a warrantless DNA collection program approved by California voters in 2004. We filed a new amicus brief, explaining that even after <em>King</em>,<em> </em>Prop 69 is unconstitutional. It's the second <a href="https://www.eff.org/files/Filed%20Haskell%20Amicus%20Brief.pdf">amicus brief</a> we've <a href="https://www.eff.org/deeplinks/2012/03/eff-again-reminds-court-forced-warrantless-dna-collection-violates-fourth">filed</a> in this important privacy case.</p>
<p>Our new brief explains that although <em>King</em> approved of <em>Maryland's</em> DNA collection scheme, it didn't approve <em>all</em> warrantless DNA collection schemes per se. Instead, the Supreme Court has consistently <a href="http://scholar.google.com/scholar_case?q=469++U.S.++325&amp;hl=en&amp;as_sdt=2003&amp;case=4170966027434691269&amp;scilh=0">said</a> that what is "reasonable" under the Fourth Amendment depends on the "context" in which a search takes place and so the Ninth Circuit would have to look at California's law anew.</p>
<p>While <em>King </em>focused on "identification" and equated DNA with a fingerprint, we explain how DNA reveals far more information than a mere fingerprint, since DNA contains our entire genetic makeup, revealing where we came from, who we're related to and whether we're likely to get certain diseases. Nor does the government need DNA to "identify" the person they've arrested since fingerprints have proven to be a effective way to ensure the police have the right person without implicating the same privacy concerns as DNA collection. As the government's ability to collect DNA rapidly expands, the court must impose some limits to prevent the real harms that occur with excessive DNA collection, including <a href="http://www.sfgate.com/crime/article/How-innocent-man-s-DNA-was-found-at-killing-scene-4624971.php">false identification</a> of innocent people.</p>
<p>DNA collection is just another <a href="https://www.eff.org/nsa-spying">example</a> of the government's use of technology to shrink privacy and push the boundaries of what it can collect outside the confides of the Fourth Amendment. We hope the Ninth Circuit will appreciate that Maryland's collection scheme is different than California's and find Prop 69 unconstitutional.</p>
<p>The Ninth Circuit will hear oral argument in <em>Haskell</em> sometime in December in San Francisco.</p>
</div></div></div><div class="field field-name-field-related-cases field-type-node-reference field-label-above"><div class="field-label">Related Cases:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/ru/cases/us-v-pool">US v. Pool</a></div><div class="field-item odd"><a href="/ru/cases/maryland-v-king">Maryland v. King</a></div></div></div><div class="share-links" style="margin-bottom:10px"><br/>Share this: <a href="https://twitter.com/intent/tweet?text=EFF%20Asks%20Court%20to%20Review%20California%27s%20Warrantless%20DNA%20Collection%20Anew&amp;url=https%3A//www.eff.org/ru/deeplinks/2013/10/eff-asks-court-review-californias-warrantless-dna-collection-anew&amp;related=eff&amp;via=eff" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/twitter48.png" alt="Share on Twitter" /></a> <a href="https://www.facebook.com/share.php?t=EFF%20Asks%20Court%20to%20Review%20California%27s%20Warrantless%20DNA%20Collection%20Anew&amp;u=https%3A//www.eff.org/ru/deeplinks/2013/10/eff-asks-court-review-californias-warrantless-dna-collection-anew" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/facebook48.png" alt="Share on Facebook" /></a> <a href="https://plus.google.com/share?url=https%3A//www.eff.org/ru/deeplinks/2013/10/eff-asks-court-review-californias-warrantless-dna-collection-anew" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/gplus48.png" alt="Share on Google+" /></a> <a href="https://sharetodiaspora.github.com/?title=EFF%20Asks%20Court%20to%20Review%20California%27s%20Warrantless%20DNA%20Collection%20Anew&amp;url=https%3A//www.eff.org/ru/deeplinks/2013/10/eff-asks-court-review-californias-warrantless-dna-collection-anew" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/diaspora48.png" alt="Share on Diaspora" /></a> <a href="https://supporters.eff.org/join" style="background-color:#cc0000; color:#ffffff; text-decoration:none; cursor:pointer; padding:5px 8px; font-family:verdana; font-weight:bold; border-radius:8px; text-shadow: 1px 1px #660000; text-transform:uppercase;">Join EFF</a></div>Wed, 30 Oct 2013 18:31:15 +0000Hanni Fakhoury76813 at https://www.eff.orgLegal AnalysisBiometricsPrivacyMedical PrivacySearch Incident to ArrestEFF Brief Argues Police Need Search Warrant to Read Text Messageshttps://www.eff.org/ru/deeplinks/2013/10/eff-amicus-argues-police-need-search-warrant-read-text-messages
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>As text messages become a <a href="http://www.pewresearch.org/daily-number/texting-is-nearly-universal-among-young-adult-cell-phone-owners/">universal method</a> for personal communication across the country, courts are <a href="http://www.nytimes.com/2012/11/26/technology/legality-of-warrantless-cellphone-searches-goes-to-courts-and-legislatures.html?_r=0">struggling</a> with applying quill-era <a href="http://www.law.cornell.edu/constitution/fourth_amendment">Fourth Amendment</a> principles to the modern form of communication. A new <a href="https://www.eff.org/document/patino-amicus-brief">amicus brief</a> we filed in a case before the Rhode Island Supreme Court explains that no matter the medium, conversations should be protected by the Fourth Amendment's prohibition against warrantless searches. That includes text messages stored on <em>someone else's</em> phone.</p>
<p>The brief was filed in <em>State v. Patino.</em> Police responded to a 911 call that a child in an apartment had stopped breathing. Once the child was en route to the hospital, police began looking through a cell phone left on the kitchen counter that belonged to the boy's mother. They found text messages between the mother and her boyfriend, defendant Michael Patino, that led the police to suspect Patino caused the child's injuries. The boy eventually died and after Patino was charged with murder, he moved to suppress the warrantless search of the text messages as a violation of the Fourth Amendment and the Rhode Island state constitution. In a 190-page <a href="http://statecasefiles.justia.com/documents/rhode-island/superior-court/10-1155.pdf?ts=1347031354">opinion</a>, the trial court found Patino had standing to challenge the warrantless search of the texts, determined the search violated the Fourth Amendment and the state constitution, and suppressed the texts and other evidence obtained as a fruit of that search. The state appealed that decision to the Rhode Island Supreme Court.</p>
<p>Our amicus brief argues that people have a reasonable expectation of privacy in their private text message conversations, regardless of the electronic device in which that conversation is stored. That's because the Fourth Amendment generally protects people not places, and more specifically protects conversational privacy. That flows directly from the seminal case <a href="http://scholar.google.com/scholar_case?q=389+u.s.+347&amp;hl=en&amp;as_sdt=2003&amp;case=9210492700696416594&amp;scilh=0"><em>Katz v. United States</em></a>, which found that a warrantless wiretap of a phone booth violated the Fourth Amendment. It didn't matter that Katz didn't own the phone booth or the equipment used to make the call. He still had an expectation that his conversation wouldn't be intercepted by the police or other eavesdroppers.</p>
<p>The same should be true with <a href="http://www.forbes.com/sites/kashmirhill/2013/04/12/should-cops-have-gotten-a-warrant-before-reading-customers-texts-on-a-drug-dealers-iphone/">text messages</a>, which have supplanted phone calls as the primary means of communication for many people. Courts have increasingly accepted that electronic communications like <a href="http://scholar.google.com/scholar_case?q=631+f.3d+266&amp;hl=en&amp;as_sdt=2003&amp;case=1170760837547673255&amp;scilh=0">emails</a> and <a href="http://scholar.google.com/scholar_case?q=894+F.Supp.2d+1128&amp;hl=en&amp;as_sdt=2003&amp;case=8234137197541988380&amp;scilh=0">Facebook messages</a> are protected by the Fourth Amendment despite the fact they are stored on someone else's property, such as a service provider's servers. While a person's text messages may sit on someone else's phone, most people assume that the recipient won't share the text with others without some affirmative action by the recipient. But here, where the phone was searched not through some specific action of the recipient or even with her permission, the Fourth Amendment's privacy protections apply. And that means the warrantless, unconsented search of the text messages violated Patino's Fourth Amendment rights.</p>
<p>Thanks to Mark Pogue of Edwards Wildman Palmer, LLP for serving as our local counsel in the case.</p>
</div></div></div><div class="field field-name-field-related-cases field-type-node-reference field-label-above"><div class="field-label">Related Cases:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/ru/cases/washington-state-text-message-privacy-cases">Washington state text message privacy cases</a></div><div class="field-item odd"><a href="/ru/cases/state-v-patino">State v. Patino</a></div></div></div><div class="share-links" style="margin-bottom:10px"><br/>Share this: <a href="https://twitter.com/intent/tweet?text=EFF%20Brief%20Argues%20Police%20Need%20Search%20Warrant%20to%20Read%20Text%20Messages&amp;url=https%3A//www.eff.org/ru/deeplinks/2013/10/eff-amicus-argues-police-need-search-warrant-read-text-messages&amp;related=eff&amp;via=eff" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/twitter48.png" alt="Share on Twitter" /></a> <a href="https://www.facebook.com/share.php?t=EFF%20Brief%20Argues%20Police%20Need%20Search%20Warrant%20to%20Read%20Text%20Messages&amp;u=https%3A//www.eff.org/ru/deeplinks/2013/10/eff-amicus-argues-police-need-search-warrant-read-text-messages" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/facebook48.png" alt="Share on Facebook" /></a> <a href="https://plus.google.com/share?url=https%3A//www.eff.org/ru/deeplinks/2013/10/eff-amicus-argues-police-need-search-warrant-read-text-messages" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/gplus48.png" alt="Share on Google+" /></a> <a href="https://sharetodiaspora.github.com/?title=EFF%20Brief%20Argues%20Police%20Need%20Search%20Warrant%20to%20Read%20Text%20Messages&amp;url=https%3A//www.eff.org/ru/deeplinks/2013/10/eff-amicus-argues-police-need-search-warrant-read-text-messages" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/diaspora48.png" alt="Share on Diaspora" /></a> <a href="https://supporters.eff.org/join" style="background-color:#cc0000; color:#ffffff; text-decoration:none; cursor:pointer; padding:5px 8px; font-family:verdana; font-weight:bold; border-radius:8px; text-shadow: 1px 1px #660000; text-transform:uppercase;">Join EFF</a></div>Wed, 23 Oct 2013 16:44:16 +0000Hanni Fakhoury76710 at https://www.eff.orgLegal AnalysisPrivacySearch Incident to ArrestEFF Amicus Asks Supreme Court to Review Warrantless Smartphone Searcheshttps://www.eff.org/ru/deeplinks/2013/08/eff-amicus-asks-supreme-court-review-warrantless-smartphone-searches
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>Are police allowed to rummage through the contents of a cell phone when a person is arrested? The U.S. Supreme Court is currently <a href="http://www.volokh.com/2013/08/19/doj-files-cert-petition-in-wurie/">deciding</a> whether to grant review in two cases involving the thorny issue. Together with the <a href="https://www.cdt.org/">Center for Democracy and Technology</a>, we've filed an <a href="https://www.eff.org/document/riley-v-california-amicus-brief">amicus brief</a> with the Supreme Court asking it to grant review in <a href="http://www.volokh.com/wp-content/uploads/2013/08/Riley-cert-petition-final-1.pdf"><em>Riley v. California</em></a>, a case involving the warrantless search of a smartphone incident to arrest.</p>
<p>The <a href="http://www.law.cornell.edu/constitution/fourth_amendment">Fourth Amendment</a> requires the police to get a warrant before conducting a search. But the Supreme Court has permitted police to search a person and the areas and items within the arrestee's immediate control upon arrest without a warrant. This exception to the warrant requirement has been justified for two reasons: first, protecting officer safety means searching the person to ensure they aren't carrying a weapon; and second, a warrantless search is justified by the need to ensure no evidence is lost or destroyed. </p>
<p>But this doctrine was <a href="http://supreme.justia.com/cases/federal/us/395/752/case.html">developed</a> by the Supreme Court in an age before cell phones. While courts have permitted the warrantless search of things like <a href="http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&amp;court=us&amp;vol=415&amp;invol=800">clothes</a> or <a href="http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&amp;vol=414&amp;invol=218">cigarette packs</a> on a person under the exception, a modern smartphone is a far different thing, capable of storing immense amounts of information. As warrantless cell phone searches incident to arrest have become more widespread, state and federal courts reviewing the constitutionality of these searches have reached <a href="http://www.forbes.com/sites/kashmirhill/2013/07/31/a-map-of-where-police-can-search-your-phone-when-they-arrest-you/">conflicting opinions</a>. But as cell phones have evolved to become miniature computers, courts looking at the issue are hesitating to provide officers with wide searching authority. The two most recent court decisions on the issue, from the <a href="http://www.foxnews.com/politics/2013/05/02/florida-court-rules-cellphone-search-without-warrant-is-unconstitutional/">Florida Supreme Court</a> in <em><a href="http://www.floridasupremecourt.org/decisions/2013/sc11-1130.pdf">Smallwood v. State</a> </em>and the federal <a href="http://thinkprogress.org/justice/2013/05/21/2037961/wurie-cellphone-arrest-warrantless-search/">First Circuit Court of Appeals</a> in <a href="http://media.ca1.uscourts.gov/pdf.opinions/11-1792P-01A.pdf"><em>United States v. Wurie</em></a>, ruled such searches were not permitted especially because of the massive amounts of information stored on a smartphone.</p>
<p><em>Wurie </em>involved a simple flip phone that did not have Internet capabilities. After the federal government lost <em>Wurie</em>, it asked the U.S. Supreme Court to review the case. At the same time, a petition for <em>certiorari</em> was filed in <em>Riley</em>, a case from California that upheld the warrantless search of a smartphone incident to arrest. With the Supreme Court now deciding whether to review one or both of these cases, our amicus brief argues that the court should grant review of the case involving a smartphone, as whether the warrantless search is valid or not depends in large part on the fact phones carry far more information than physical items the court has previously considered. And at a time when the <a href="http://pewinternet.org/Reports/2013/Smartphone-Ownership-2013/Findings.aspx">majority</a> of American adults are carrying smartphones, deciding a case involving the technology currently in use will give courts, officers, and the public clear guidance of what type of search is permitted incident to arrest. Even the <a href="http://articles.washingtonpost.com/2013-08-04/politics/41067324_1_search-incident-supreme-court-u-s-court">justices</a> <a href="http://www.huffingtonpost.com/2013/08/20/supreme-court-tech-savvy_n_3786296.html">themselves</a> have recognized they will have to confront these difficult questions regarding law enforcement encroachment into sensitive information and emerging technologies. We hope the court will grant review in a case involving a widely used smartphone rather than a more primitive technology fading from public.</p>
<p>The brief was authored by <a href="http://www.mayerbrown.com/people/Andrew-J-Pincus/">Andrew Pincus</a> of Mayer Brown LLP and the Yale Law School Supreme Court Clinic.</p>
</div></div></div><div class="field field-name-field-related-cases field-type-node-reference field-label-above"><div class="field-label">Related Cases:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/ru/cases/washington-state-text-message-privacy-cases">Washington state text message privacy cases</a></div><div class="field-item odd"><a href="/ru/cases/supreme-court-cases-cell-phone-searches">Riley v. California and United States v. Wurie</a></div><div class="field-item even"><a href="/ru/cases/oregon-v-nix">Oregon v. Nix</a></div></div></div><div class="share-links" style="margin-bottom:10px"><br/>Share this: <a href="https://twitter.com/intent/tweet?text=EFF%20Amicus%20Asks%20Supreme%20Court%20to%20Review%20Warrantless%20Smartphone%20Searches&amp;url=https%3A//www.eff.org/ru/deeplinks/2013/08/eff-amicus-asks-supreme-court-review-warrantless-smartphone-searches&amp;related=eff&amp;via=eff" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/twitter48.png" alt="Share on Twitter" /></a> <a href="https://www.facebook.com/share.php?t=EFF%20Amicus%20Asks%20Supreme%20Court%20to%20Review%20Warrantless%20Smartphone%20Searches&amp;u=https%3A//www.eff.org/ru/deeplinks/2013/08/eff-amicus-asks-supreme-court-review-warrantless-smartphone-searches" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/facebook48.png" alt="Share on Facebook" /></a> <a href="https://plus.google.com/share?url=https%3A//www.eff.org/ru/deeplinks/2013/08/eff-amicus-asks-supreme-court-review-warrantless-smartphone-searches" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/gplus48.png" alt="Share on Google+" /></a> <a href="https://sharetodiaspora.github.com/?title=EFF%20Amicus%20Asks%20Supreme%20Court%20to%20Review%20Warrantless%20Smartphone%20Searches&amp;url=https%3A//www.eff.org/ru/deeplinks/2013/08/eff-amicus-asks-supreme-court-review-warrantless-smartphone-searches" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/diaspora48.png" alt="Share on Diaspora" /></a> <a href="https://supporters.eff.org/join" style="background-color:#cc0000; color:#ffffff; text-decoration:none; cursor:pointer; padding:5px 8px; font-family:verdana; font-weight:bold; border-radius:8px; text-shadow: 1px 1px #660000; text-transform:uppercase;">Join EFF</a></div>Fri, 30 Aug 2013 22:11:38 +0000Hanni Fakhoury75519 at https://www.eff.orgLegal AnalysisPrivacySearch Incident to ArrestA Junk Decision on Warrantless DNA Collectionhttps://www.eff.org/ru/deeplinks/2013/06/junk-decision-warrantless-dna-collection
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>You lost some important <a href="http://www.law.cornell.edu/constitution/fourth_amendment">Fourth Amendment</a> protection when the Supreme Court <a href="https://www.eff.org/document/supreme-court-opinion">ruled</a> yesterday in <a href="https://www.eff.org/cases/maryland-v-king"><em>Maryland v. King</em></a> that the police can take a DNA sample from an arrestee without a search warrant for purposes of general law enforcement rummaging.</p>
<p>The court was reviewing the constitutionality of Maryland's practice of collecting DNA from all arrestees -- without a search warrant or any individualized suspicion that the DNA will lead to evidence of a crime. Maryland is not alone in this practice; 28 states and the <a href="https://www.eff.org/foia/federal-dna-collection">federal government</a> all do the same thing. Once law enforcement has a DNA sample, it's sent to a lab to extract a portion of the sample, called a DNA profile. The lab then sends that profile to an FBI-maintained database called CODIS to be compared against other profiles from genetic material left at crime scenes with the hope of solving a cold case. That's what happened to King, who was arrested for assault and, upon arrest, had his DNA collected. As the assault case worked its way through the criminal justice system, King's DNA profile ultimately linked him to an earlier, unsolved rape. King was charged and convicted of that crime and sentenced to life in prison.</p>
<p>There's no question that collecting DNA is a "search" under the Fourth Amendment and so ultimately the case boiled down to the purpose for which the DNA was being collected. In the past, the Court has never allowed suspicionless searches for mere investigative, crime-solving purposes because this is the key problem the Fourth Amendment was written to protect against. The Court has only allowed suspicionless searches in limited <a href="http://www.law.cornell.edu/supct/html/96-126.ZO.html">"special needs"</a> cases where the search is for a purpose other than crime investigation, such as at a border or a sobriety checkpoint. Over the <a href="https://www.eff.org/deeplinks/2012/08/court-battles-over-warrantless-dna-collection-heating">the</a> <a href="https://www.eff.org/deeplinks/2012/05/eff-tells-ca-supreme-court-warrantless-dna-collection-unconstitutional">last</a> <a href="https://www.eff.org/deeplinks/2012/03/eff-again-reminds-court-forced-warrantless-dna-collection-violates-fourth">two</a> <a href="https://www.eff.org/press/archives/2011/07/26">years</a>, we've argued to courts throughout the country—including filing an <a href="https://www.eff.org/document/amicus-brief-16">amicus brief</a> with the Supreme Court in <em>King—</em>that warrantless DNA collection from arrestees is unconstitutional because collecting, analyzing and searching their DNA only serves a law enforcement investigative purpose to solve cold cases, and thus doesn't fall under any of the "special needs" exceptions.</p>
<p>Unfortunately Justice Kennedy's majority opinion didn't see it that way. In finding DNA collection from arrestees to be constitutional, the Court relied on two faulty premises.</p>
<p>The Court found the "search" at issue was limited to the cheek swab to obtain the DNA rather than the searches that come after, namely running the DNA sample through the CODIS database. Just like its decision last year in <a href="https://www.eff.org/cases/us-v-jones"><em>United States v. Jones</em></a> assessing the constitutionality of installing a GPS device by looking to the law of trespass, the majority once again refused to address the privacy issues involved in searching aggregated intangible data rather than physical places or things. This has implications for other kinds of searches that don't involve physical contact and are likely to reach courts in the future, including law enforcement use of <a href="https://www.eff.org/deeplinks/2012/07/fbis_facial_recognition_coming_state_near_you">facial recognition</a> and <a href="https://www.eff.org/foia/faa-drone-authorizations">drones</a> flying around in public spaces.</p>
<p>Then the majority found the purpose of the search was identification—ensuring the police arrested the right person—and to determine the person's prior criminal history to help a court make a correct bail determination. In doing so, the majority found collecting DNA was no different than taking an arrestee's photograph or fingerprint. But this reasoning is wrong for two reasons.</p>
<p>First, DNA tells far more about a person than a mere picture or fingerprint. Instead, it provides police with a person's entire genetic makeup. And even when the DNA sample is reduced to the non-coding DNA profile entered into CODIS, that profile can tell who you're related to and who you're not.</p>
<p>Second, in Maryland, like all other jurisdictions that collect DNA from arrestees, there's no way DNA could be used to "identify" anyone (in the ordinary definition of "identify"—which means to indicate conclusively who that person is) or to affect a bail determination from the simple fact that DNA testing takes too long and just doesn't work that way. DNA testing can't begin until after arraignment, a court proceeding when the defendant is informed of the formal charges against him and which usually takes place after his initial appearance in court, which is where bail determinations are typically made. And because of the vast amount of DNA collected by the police, coupled with the backlog in testing and the current capabilities of technology, the DNA samples sit in storage for months before they are actually tested. Finally, as Justice Scalia notes in his dissent, even once the profile is extracted, it's never compared against the offender database—only against the database of cold hits. So the real way Mr. King was "identified" was—like most other suspects today—with his fingerprint.</p>
<p>Justice Kennedy responds by noting "the question of how long it takes to process identifying information obtained from a valid search goes only to the efficacy of the search for its purpose of prompt identification, not the constitutionality of the search." But that misses the point. Determining the reasonableness of a search under the Fourth Amendment depends on whether the search is reasonably related in scope to the circumstances that justify the search initially. That in turn has to hinge on what the search can potentially reveal. Requiring a person to turn over their entire genome for the purpose of "identification"—a dubious proposition in and of itself—is overkill of constitutional magnitude. And by conflating "identification" with "investigation," the Court does just that.</p>
<p>Most troublesome, it has no limits. While the majority attempts to cabin this collection for "serious" offenses, there is no constitutional difference between a minor and serious offense. The result is that getting arrested for anything -- even <a href="https://en.wikipedia.org/wiki/Atwater_v._Lago_Vista">driving without a seat belt</a> -- could lead to your DNA being collected. And with <a href="http://pediatrics.aappublications.org/content/129/1/21.full">studies</a> indicating that one in three Americans will be arrested by the time they are 23, this decision will impact a a very large proportion of the American population, and, due to racial profiling endemic in policing, will once again disproporionately affect minorities.</p>
<p>The rise of <a href="https://www.eff.org/deeplinks/2012/12/rapid-dna-analysis">Rapid DNA</a> analyzers makes the problem even worse, because it makes DNA searches at station houses and in cop cars easier, regardless of whether charges are ever filed at all. The limitlesss potential of allowing this type of search goes beyond the number of people affected. When a person is arrested, should their email accounts be turned over too? How about the data on their cell phones? Surely this would help "identify" a person for bail purposes, particularly in light of Justice Kennedy's expansive definition of "identity" to cover examination of "the whole context of who the person really is."</p>
<p>The decision is even more troubling when you focus on the real investigative purpose of DNA collection. Of course solving crimes is a noble goal, but it bears remembering that arrestees are presumed innocent. If the mere purpose of solving crimes is enough to justify this warrantless intrusion into a person's genetic makeup, what is to stop the law enforcement from collecting DNA from everyone? Why not just collect it from babies at birth or people applying for a driver's license? </p>
<p>Ultimately, in <em>Maryland v. King</em>, the Supreme Court effectively killed Fourth Amendment protections for the most vulnerable members of society. King's DNA could have been collected <em>after</em> his conviction on the assault charge, as every state and the federal government also collects DNA from convicted felons. But by authorizing warrantless DNA collection from arrestees, as Justice Scalia noted the majority managed to "to burden uniquely the sole group for whom the Fourth Amendment’s protections ought to be most jealously guarded: people who are innocent of the State’s accusations."</p>
<p>And while the majority hints at some limitations to the government's ability to collect DNA, the expansion of DNA collection over the last ten years (not to mention other forms of <a href="https://www.eff.org/deeplinks/2012/10/stingrays-biggest-unknown-technological-threat-cell-phone-privacy">invasive</a> <a href="https://www.eff.org/issues/cell-tracking">evidence</a> <a href="https://www.eff.org/nsa-spying">gathering</a>) suggests these limitations will become meaningless without vigilant judicial supervision. The Supreme Court shrank from that responsibility with its decision and our Fourth Amendment's protections are worse off as a result.</p>
</div></div></div><div class="field field-name-field-related-cases field-type-node-reference field-label-above"><div class="field-label">Related Cases:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/ru/cases/maryland-v-king">Maryland v. King</a></div><div class="field-item odd"><a href="/ru/foia/dna-collection">DNA Collection</a></div></div></div><div class="share-links" style="margin-bottom:10px"><br/>Share this: <a href="https://twitter.com/intent/tweet?text=A%20Junk%20Decision%20on%20Warrantless%20DNA%20Collection&amp;url=https%3A//www.eff.org/ru/deeplinks/2013/06/junk-decision-warrantless-dna-collection&amp;related=eff&amp;via=eff" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/twitter48.png" alt="Share on Twitter" /></a> <a href="https://www.facebook.com/share.php?t=A%20Junk%20Decision%20on%20Warrantless%20DNA%20Collection&amp;u=https%3A//www.eff.org/ru/deeplinks/2013/06/junk-decision-warrantless-dna-collection" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/facebook48.png" alt="Share on Facebook" /></a> <a href="https://plus.google.com/share?url=https%3A//www.eff.org/ru/deeplinks/2013/06/junk-decision-warrantless-dna-collection" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/gplus48.png" alt="Share on Google+" /></a> <a href="https://sharetodiaspora.github.com/?title=A%20Junk%20Decision%20on%20Warrantless%20DNA%20Collection&amp;url=https%3A//www.eff.org/ru/deeplinks/2013/06/junk-decision-warrantless-dna-collection" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/diaspora48.png" alt="Share on Diaspora" /></a> <a href="https://supporters.eff.org/join" style="background-color:#cc0000; color:#ffffff; text-decoration:none; cursor:pointer; padding:5px 8px; font-family:verdana; font-weight:bold; border-radius:8px; text-shadow: 1px 1px #660000; text-transform:uppercase;">Join EFF</a></div>Tue, 04 Jun 2013 23:03:05 +0000Hanni Fakhoury and Jennifer Lynch74417 at https://www.eff.orgLegal AnalysisBiometricsPrivacyMedical PrivacySearch Incident to ArrestTransparencyEFF to Texas High Court: A Cell Phone Isn't a Pair of Pantshttps://www.eff.org/ru/deeplinks/2013/04/eff-texas-high-court-cell-phone-isnt-pair-pants
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>"Is a cell phone really a pair of trousers?"</p>
<p>That's the question posed in a Texas case dealing with whether the police need a warrant to search the contents of a cell phone sitting in a jail's property room. In a new <a href="https://www.eff.org/document/granville-amicus-brief">amicus brief</a> we filed in the Texas Court of Criminal Appeals, we explain police need a warrant before searching an arrested person's cell phone.</p>
<p>Teenager Anthony Granville was arrested at his high school for a misdemeanor and booked into the county jail. All of his belongings, including his cell phone, were taken from him and placed in the jail's property room while he was locked up. Three hours after his arrest, a different officer than the one who arrested Granville at the high school went into the property room and, without a search warrant, looked through Granville's phone in search of evidence connected to another, unrelated <del>misdemeanor</del> felony.</p>
<p>The trial court suppressed the evidence taken from the phone, finding the officer had plenty of time and opportunity to obtain a search warrant and no exigent circumstance justified the search. The state appealed to the Texas Court of Appeals, arguing that Granville had no expectation of privacy in the contents of his cell phone while it was in the jailhouse, noting that looking through the phone was no different than looking at a person's clothes when they are booked into jail. The appellate court <a href="https://www.eff.org/document/granville-coa-opinion">disagreed</a> with the government's analogy, finding the amount of information stored on mobile devices make a cell phone search far more invasive than a search of clothing. Now the case is in front of the Texas Court of Criminal Appeals and we've filed an amicus brief along with <a href="http://effaustin.org/">EFF-Austin</a>, the <a href="http://www.texascivilrightsproject.org/">Texas Civil Rights Project</a> and the <a href="http://www.aclutx.org/">ACLU of Texas</a> urging the high court to affirm the decision of the two courts before it that found the government's warrantless search violated the Fourth Amendment.</p>
<p>In our amicus brief we explain the government had no excuse for not obtaining a warrant before searching Granville's phone. A person doesn't surrender their expectation of privacy in the contents of their phone once the phone is in the hands of jail officials. Plus none of the exceptions to the search warrant requirement applied. This wasn't a search <a href="https://www.eff.org/issues/search-incident-arrest">"incident to arrest"</a> since it took place hours after Granville was arrested, when the phone was out of his control. And it wasn't an <a href="https://supreme.justia.com/cases/federal/us/495/1/case.html">"inventory search"</a> because once the phone itself was inventoried and secured by the police, there was no need to inventory the data on the phone. Plus, a inventory search can't be used as a pretext for a clearly investigatory search, which this certainly was. </p>
<p>Trying to pigeonhole the search of a cell phone into legal precedent addressing something quite different only highlights the need to have the law account for technological changes. As Professor Orin Kerr <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2234319">observed</a> recently, "thanks to changing technology and its widespread adoption, searching a person meant one thing in 1973 and means something quite different today." Courts are slowly recognizing this. In <em><a href="https://www.eff.org/deeplinks/2013/03/finally-some-limit-electronic-searches-border">United States v. Cotterman</a></em>, the Ninth Circuit Court of Appeals recently ruled that given the amount of information stored on electronic devices, border agents must have a reasonable suspicion of criminal activity before engaging in a "forensic examination" of an electronic device. Part of the court's justification was that although the amount of items a person can carry in physical luggage is necessarily limited, the same isn't true with electronic devices. A broad electronic search policy would be the equivalent of searching luggage for "not only what the bag contained on the current trip, but everything it had ever carried." </p>
<p>The appellate court's obvious conclusion that "a cell phone is not a pair of pants" follows this correct line of thinking and makes clear that our privacy rights don't become eviscerated simply because invasive searches not contemplated 30 years ago can now happen with just a few taps on a screen.</p>
<p>Special thanks to Amy Eikel of <a href="http://www.kslaw.com/">King &amp; Spalding LLP</a> in Houston, Texas for writing our brief.</p>
</div></div></div><div class="field field-name-field-related-cases field-type-node-reference field-label-above"><div class="field-label">Related Cases:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/ru/cases/state-v-granville">State v. Granville</a></div></div></div><div class="share-links" style="margin-bottom:10px"><br/>Share this: <a href="https://twitter.com/intent/tweet?text=EFF%20to%20Texas%20High%20Court%3A%20A%20Cell%20Phone%20Isn%27t%20a%20Pair%20of%20Pants&amp;url=https%3A//www.eff.org/ru/deeplinks/2013/04/eff-texas-high-court-cell-phone-isnt-pair-pants&amp;related=eff&amp;via=eff" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/twitter48.png" alt="Share on Twitter" /></a> <a href="https://www.facebook.com/share.php?t=EFF%20to%20Texas%20High%20Court%3A%20A%20Cell%20Phone%20Isn%27t%20a%20Pair%20of%20Pants&amp;u=https%3A//www.eff.org/ru/deeplinks/2013/04/eff-texas-high-court-cell-phone-isnt-pair-pants" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/facebook48.png" alt="Share on Facebook" /></a> <a href="https://plus.google.com/share?url=https%3A//www.eff.org/ru/deeplinks/2013/04/eff-texas-high-court-cell-phone-isnt-pair-pants" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/gplus48.png" alt="Share on Google+" /></a> <a href="https://sharetodiaspora.github.com/?title=EFF%20to%20Texas%20High%20Court%3A%20A%20Cell%20Phone%20Isn%27t%20a%20Pair%20of%20Pants&amp;url=https%3A//www.eff.org/ru/deeplinks/2013/04/eff-texas-high-court-cell-phone-isnt-pair-pants" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/diaspora48.png" alt="Share on Diaspora" /></a> <a href="https://supporters.eff.org/join" style="background-color:#cc0000; color:#ffffff; text-decoration:none; cursor:pointer; padding:5px 8px; font-family:verdana; font-weight:bold; border-radius:8px; text-shadow: 1px 1px #660000; text-transform:uppercase;">Join EFF</a></div>Tue, 02 Apr 2013 17:52:33 +0000Hanni Fakhoury73730 at https://www.eff.orgAnnouncementPrivacySearch Incident to ArrestEFF Continues Support of OWS Protester & Twitter As Case Is Appealedhttps://www.eff.org/ru/node/71675
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>Does the government need a search warrant to get information about your Twitter activity -- information like deleted tweets, other users you communicate with, and the list of IP addresses you used to connect to the service? Today we joined the <a href="https://www.aclu.org/">ACLU</a>, <a href="http://www.nyclu.org/">New York Civil Liberties Union</a> (NYCLU) and <a href="https://www.citizen.org/Page.aspx?pid=183">Public Citizen</a> in <a href="https://www.eff.org/document/amicus-brief-rom-eff-and-aclu">telling</a> a New York appeals court that the answer to that question is yes. </p>
<p>Malcolm Harris was one of the 700 Occupy Wall Street protesters <a href="http://cityroom.blogs.nytimes.com/2011/10/01/police-arresting-protesters-on-brooklyn-bridge/?scp=2&amp;sq=october%201,%202011%20occupy%20wall%20street%20brooklyn%20bridge&amp;st=cse">arrested in October 2011</a> on the Brooklyn Bridge. New York City prosecutors sent a broad subpoena to Twitter requesting three months worth of information on Harris. In a troubling ruling, a New York trial court found that <a href="https://www.eff.org/deeplinks/2012/05/twitter-fights-back-against-ny-judges-sweeping-order">Harris had no legal standing</a> to challenge the subpoena because he didn't own this data, Twitter did. Beyond gutting Harris' legal ability to challenge the subpoena, the <a href="https://www.eff.org/deeplinks/2012/05/NY-twitter-decision-fails-to-recognize-content-and-location">trial court's decision also undermined privacy</a> by allowing the government warrantless access to the content of communications. This includes Harris' tweets, as well his location, which is ascertainable through the IP addresses Twitter records when a person logs into the service. IP addresses can then be used to link a person to a specific location. </p>
<p>Fortunately, Twitter intervened and <a href="https://www.eff.org/deeplinks/2012/05/twitter-fights-back-against-ny-judges-sweeping-order">challenged the subpoena itself</a>, arguing that a search warrant was required to access Harris' information. Happy to see a company stand up for one of its users, <a href="https://www.eff.org/deeplinks/2012/05/eff-joins-twitter-standing-user">we supported Twitter</a> in an <a href="https://www.eff.org/files/People%20v%20Harris%20-%20Brief%20of%20Amici%20Curiae%2C%20File%20Stamped%2C%2005-31-12_0.PDF">amicus brief</a> (PDF), arguing that the court's opinion raised significant First and Fourth Amendment concerns. Unfortunately, the trial court was not moved and <a href="https://www.eff.org/deeplinks/2012/07/court-ows-twitter-case-gets-it-wrong-again">denied Twitter's motion to quash</a> just as it had denied Harris' before.</p>
<p>Now the case is moving up to a New York appellate court. First, Harris' lawyer filed a <a href="http://www.scribd.com/doc/103364055/OWS-harris-art78-Petition">writ of mandamus</a>, urging the appeals court to order the trial court to quash the subpoena. Then Twitter filed an appeal before the same court, asking it to reverse the trial court's decision to authorize the subpoena. We're <a href="https://www.eff.org/document/amicus-brief-rom-eff-and-aclu">urging</a> the court, again, to find that Harris has standing to challenge the government action, quash the subpoena, and require prosecutors to get a search warrant instead.</p>
<p>As more of our personal data -- where we go, who we interact with, and what we're talking about or reading -- ends up in the hands of third parties, it becomes all the more important for users to be able to advocate for their constitutional rights for themselves. Individuals have long been able to challenge government requests to third parties that implicate constitutional rights, and here, Harris' constitutional rights are certainly implicated. As we've successfully argued in other cases, the government needs a search warrant in order to obtain both <a href="https://www.eff.org/deeplinks/2010/12/breaking-news-eff-victory-appeals-court-holds">content</a> and <a href="https://www.eff.org/deeplinks/2010/09/breaking-news-eff-location-privacy-win-courts-may">location data</a>. When it comes to location data, the Supreme Court's decision in <em><a href="https://www.eff.org/cases/us-v-jones">United States v. Jones</a></em> earlier this year made this even clearer, as the court ruled law enforcement needed a warrant to install a GPS device on a car. </p>
<p>Moreover, the First Amendment, which protects freedom of speech and association, is implicated here too. It demands the government prove not only an "overriding and compelling" need for this information, but also a substantial connection between the information it seeks and the investigation it is conducting. The government has utterly failed to meet this standard in Harris' case, as he is facing a minor disorderly conduct charge.</p>
<p>As the case continues through the appellate process, we hope the court recognizes what is at stake. The future of free speech and privacy on the Internet is being implicated in a case involving nothing more than a simple act of civil disobedience that typically gets dismissed at the initial court appearance. Instead, the court has a chance to allow users to challenge government overreach and reinforce how our longstanding constitutional rights apply in an increasingly digital world.</p>
</div></div></div><div class="field field-name-field-related-cases field-type-node-reference field-label-above"><div class="field-label">Related Cases:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/ru/cases/new-york-v-harris">New York v. Harris</a></div></div></div><div class="share-links" style="margin-bottom:10px"><br/>Share this: <a href="https://twitter.com/intent/tweet?text=EFF%20Continues%20Support%20of%20OWS%20Protester%20%26%20Twitter%20As%20Case%20Is%20Appealed&amp;url=https%3A//www.eff.org/ru/node/71675&amp;related=eff&amp;via=eff" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/twitter48.png" alt="Share on Twitter" /></a> <a href="https://www.facebook.com/share.php?t=EFF%20Continues%20Support%20of%20OWS%20Protester%20%26%20Twitter%20As%20Case%20Is%20Appealed&amp;u=https%3A//www.eff.org/ru/node/71675" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/facebook48.png" alt="Share on Facebook" /></a> <a href="https://plus.google.com/share?url=https%3A//www.eff.org/ru/node/71675" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/gplus48.png" alt="Share on Google+" /></a> <a href="https://sharetodiaspora.github.com/?title=EFF%20Continues%20Support%20of%20OWS%20Protester%20%26%20Twitter%20As%20Case%20Is%20Appealed&amp;url=https%3A//www.eff.org/ru/node/71675" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/diaspora48.png" alt="Share on Diaspora" /></a> <a href="https://supporters.eff.org/join" style="background-color:#cc0000; color:#ffffff; text-decoration:none; cursor:pointer; padding:5px 8px; font-family:verdana; font-weight:bold; border-radius:8px; text-shadow: 1px 1px #660000; text-transform:uppercase;">Join EFF</a></div>Mon, 27 Aug 2012 23:16:50 +0000Hanni Fakhoury71675 at https://www.eff.orgAnnouncementPrivacyLocational PrivacySearch Incident to ArrestSocial NetworksCourt Battles Over Warrantless DNA Collection Heating Uphttps://www.eff.org/ru/deeplinks/2012/08/court-battles-over-warrantless-dna-collection-heating
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>Should the police be allowed to warrantlessly collect and index the DNA of people merely arrested for a crime, while they are still cloaked in the presumption of innocence and have not been found guilty of anything? <a href="https://www.eff.org/press/archives/2011/07/26">Over</a> and <a href="https://www.eff.org/deeplinks/2011/12/time-supreme-court-weigh-forced-dna-collection">over</a> again, we've <a href="https://www.eff.org/deeplinks/2012/03/eff-again-reminds-court-forced-warrantless-dna-collection-violates-fourth">warned</a> <a href="https://www.eff.org/deeplinks/2012/05/eff-tells-ca-supreme-court-warrantless-dna-collection-unconstitutional">courts</a> throughout the country the answer is no, and it now looks like judges are taking notice, including the U.S. Supreme Court.</p>
<p>Courts and judges throughout the country have been split over the controversial practice of warrantless DNA collection from mere arrestees. The samples collected by state and federal law enforcement officials are placed into <a href="http://www.fbi.gov/about-us/lab/codis">CODIS</a>, a federal DNA database that law enforcement officers throughout the country are permitted to access.</p>
<p>In California, federal and state courts have reached different conclusions on the constitutionality of <a href="http://oag.ca.gov/bfs/prop69">Proposition 69</a>, California's DNA collection scheme. The <a href="https://www.eff.org/files/buza%20opinion.pdf">California Court of Appeal</a> (PDF) initially found the practice unconstitutional as a violation of the Fourth Amendment's right to be free from unreasonable searches and seizures. That decision is now on review to the California Supreme Court. Meanwhile, a federal three judge panel of the <a href="http://www.ca9.uscourts.gov/datastore/general/2012/02/23/10-15152.pdf">Ninth Circuit Court of Appeals</a> (PDF) rejected a lawsuit brought by the <a href="http://aclunc.org/cases/active_cases/haskell_v._brown.shtml">ACLU of Northern California</a> and instead found Prop. 69 constitutional.</p>
<p>Similarly, the <a href="http://www.ca3.uscourts.gov/opinarch/094718p.pdf">Third Circuit Court of Appeals</a> (PDF) found the practice constitutional in a case out of Pennsylvania, while the <a href="http://mdcourts.gov/opinions/coa/2012/68a11.pdf">Maryland Court of Appeal</a> (PDF) found the warrantless DNA collection of mere arrestees to be unconstitutional. It's telling that many of these decisions highlight deep divisions within the bench, spurring impassioned dissenting opinions.</p>
<p>This division is finally working its way to the highest courts of the country. First, the entire Ninth Circuit Court of Appeals last week <a href="http://www.ca9.uscourts.gov/datastore/opinions/2012/07/30/10-15152o.pdf">agreed to rehear</a> (PDF) its opinion dismissing the ACLU challenge to Prop. 69. Then on Monday, Chief Justice Roberts of the U.S. Supreme Court signalled there is a "reasonable probability" that the high court would step in to review the conflicting opinions. His comments came in a brief <a href="http://www.supremecourt.gov/opinions/11pdf/12A48c3d7.pdf">order</a> (PDF), granting the state of Maryland's request to stay the decision finding warrantless DNA collection from mere arrestees to be unconstitutional. </p>
<p>If and when the the Supreme Court reviews this issue, it needs to be cognizant of the enormous privacy concerns surrounding the collection and storage of DNA in a federal database. DNA is the most intimate and sensitive aspect of a human, able to reveal a snapshot of a person -- and their family's -- medical and genetic history. The history of CODIS and its continued expansion shows that <a href="http://archive.ca9.uscourts.gov/coa/newopinions.nsf/BADFFFC872DBA30288256EF300802EBD/$file/0250380.pdf?openelement">Ninth Circuit Chief Judge Kozinski</a> (PDF) was right in warning that the "voracious appetite of law enforcement" needed to be curbed by the courts. What initially started as DNA collection of individuals convicted of violent felonies has expanded to include all felons and now covers individuals not even convicted. And as we explain in detail in a recently published <a href="https://www.eff.org/document/fingerprints-dna-biometric-data-collection-us-immigrant-communities-and-beyond">whitepaper</a>, DNA collection is now a routine part of the immigration system, where individuals are not under arrest, let alone suspected of committing any crimes.</p>
<p>Chief Justice Roberts' brief order suggests he may not be sympathetic to the privacy issues at stake. But the pro-privacy concurring opinions of Justices Sotomayor and Alito in another recent Fourth Amendment case -- <a href="https://www.eff.org/cases/us-v-jones">United States v. Jones</a> -- suggests there are some on the Supreme Court who recognize we live in an age where technology has the serious potential of shrinking privacy. And that means courts must recognize that giving DNA Fourth Amendment protection is essential in order to keep sensitive biometric data from prying government eyes.</p>
</div></div></div><div class="field field-name-field-related-cases field-type-node-reference field-label-above"><div class="field-label">Related Cases:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/ru/cases/us-v-pool">US v. Pool</a></div><div class="field-item odd"><a href="/ru/foia/federal-dna-collection">Federal DNA Collection</a></div></div></div><div class="share-links" style="margin-bottom:10px"><br/>Share this: <a href="https://twitter.com/intent/tweet?text=Court%20Battles%20Over%20Warrantless%20DNA%20Collection%20Heating%20Up&amp;url=https%3A//www.eff.org/ru/deeplinks/2012/08/court-battles-over-warrantless-dna-collection-heating&amp;related=eff&amp;via=eff" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/twitter48.png" alt="Share on Twitter" /></a> <a href="https://www.facebook.com/share.php?t=Court%20Battles%20Over%20Warrantless%20DNA%20Collection%20Heating%20Up&amp;u=https%3A//www.eff.org/ru/deeplinks/2012/08/court-battles-over-warrantless-dna-collection-heating" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/facebook48.png" alt="Share on Facebook" /></a> <a href="https://plus.google.com/share?url=https%3A//www.eff.org/ru/deeplinks/2012/08/court-battles-over-warrantless-dna-collection-heating" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/gplus48.png" alt="Share on Google+" /></a> <a href="https://sharetodiaspora.github.com/?title=Court%20Battles%20Over%20Warrantless%20DNA%20Collection%20Heating%20Up&amp;url=https%3A//www.eff.org/ru/deeplinks/2012/08/court-battles-over-warrantless-dna-collection-heating" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/diaspora48.png" alt="Share on Diaspora" /></a> <a href="https://supporters.eff.org/join" style="background-color:#cc0000; color:#ffffff; text-decoration:none; cursor:pointer; padding:5px 8px; font-family:verdana; font-weight:bold; border-radius:8px; text-shadow: 1px 1px #660000; text-transform:uppercase;">Join EFF</a></div>Thu, 02 Aug 2012 16:39:16 +0000Hanni Fakhoury71401 at https://www.eff.orgLegal AnalysisBiometricsPrivacySearch Incident to ArrestTransparencyCourt in OWS Twitter Case Gets it Wrong Againhttps://www.eff.org/ru/deeplinks/2012/07/court-ows-twitter-case-gets-it-wrong-again
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>Despite Twitter's (and our) best efforts, it has been ordered to disclose to the government all of the information it has on an Occupy Wall Street protester. </p>
<p>We've been following the case of <a href="https://www.eff.org/cases/new-york-v-harris">Malcolm Harris'</a> -- arrested in connection with the OWS Brooklyn Bridge protest in October 2011 -- very closely. Charged with disorderly conduct, New York City prosecutors sent a <a href="https://www.eff.org/node/70915">broad subpoena</a> to Twitter, seeking to obtain any and all information it had on Harris -- tweets, subscriber information, email addresses. From the very beginning, <a href="https://www.eff.org/deeplinks/2012/02/malcolm-harris-occupy-wall-street-twitter-government-pressure">we suspected</a> that the government was really after location information. And sure enough, after Harris challenged the subpoena, the NYC prosecutors admitted they wanted the information to show he was on the bridge at the time of his arrest.</p>
<p>In April, the court <a href="https://www.eff.org/node/70916">denied Harris' motion to quash</a>, writing an opinion filled with troubling legal conclusions, finding Harris had <a href="https://www.eff.org/deeplinks/2012/05/twitter-fights-back-against-ny-judges-sweeping-order">no legal standing to challenge the subpoena</a> since he didn't own his tweets, and allowing the government to access <a href="https://www.eff.org/deeplinks/2012/05/NY-twitter-decision-fails-to-recognize-content-and-location">content and location data without a search warrant</a>. Thankfully, Twitter stepped up to challenge the subpoena since the court ruled Harris couldn't do it himself, and <a href="https://www.eff.org/deeplinks/2012/05/eff-joins-twitter-standing-user">together with the ACLU and Public Knowledge</a>, we filed an <a href="https://www.eff.org/node/70914">amicus brief</a> in support of <a href="https://www.eff.org/node/70918">Twitter's motion to quash</a>.</p>
<p>Unfortunately, last week the court <a href="https://www.eff.org/node/71147">issued another decision</a>, this time denying Twitter's motion to quash for much the same reason that it denied Harris' motion to quash: the belief that there is no expectation of privacy -- and thus no 4th Amendment privacy interest -- in information turned over to companies or broadcast over the Internet. While we're not surprised the judge didn't change his mind, we're still disappointed to see the court failing to appreciate the privacy concerns at stake. We think the court is behind the times on this important issue.</p>
<p>We've repeatedly (and are <a href="https://www.eff.org/cases/fifth-circuit-cell-phone-tracking-case">continuing to</a>) challenge this idea and have seen some courts slowly begin to recognize that the 4th Amendment's right to privacy applies to information, like <a href="https://www.eff.org/deeplinks/2010/12/breaking-news-eff-victory-appeals-court-holds">emails</a> and <a href="https://www.eff.org/deeplinks/2010/12/breaking-news-eff-victory-appeals-court-holds">cell site location information</a>, turned over to third parties. Earlier this year, Supreme Court Justice Sotomayor noted in her concurring opinion in <em><a href="https://www.eff.org/cases/us-v-jones">United States v. Jones</a></em> that the elimination of privacy rights in information turned over to third parties is "ill-suited" for the digital age we live in today.</p>
<p>While we may have lost this round of the fight, we're positive that this will not be the end of this issue both in Harris' case, and in similar cases throughout the country. As this case and issue work their way up through the appellate courts, EFF will be continuing the fight to keep this sensitive personal information out of the prying hands of the government unless they obtain a search warrant.</p>
</div></div></div><div class="field field-name-field-related-cases field-type-node-reference field-label-above"><div class="field-label">Related Cases:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/ru/cases/new-york-v-harris">New York v. Harris</a></div></div></div><div class="share-links" style="margin-bottom:10px"><br/>Share this: <a href="https://twitter.com/intent/tweet?text=Court%20in%20OWS%20Twitter%20Case%20Gets%20it%20Wrong%20Again&amp;url=https%3A//www.eff.org/ru/deeplinks/2012/07/court-ows-twitter-case-gets-it-wrong-again&amp;related=eff&amp;via=eff" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/twitter48.png" alt="Share on Twitter" /></a> <a href="https://www.facebook.com/share.php?t=Court%20in%20OWS%20Twitter%20Case%20Gets%20it%20Wrong%20Again&amp;u=https%3A//www.eff.org/ru/deeplinks/2012/07/court-ows-twitter-case-gets-it-wrong-again" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/facebook48.png" alt="Share on Facebook" /></a> <a href="https://plus.google.com/share?url=https%3A//www.eff.org/ru/deeplinks/2012/07/court-ows-twitter-case-gets-it-wrong-again" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/gplus48.png" alt="Share on Google+" /></a> <a href="https://sharetodiaspora.github.com/?title=Court%20in%20OWS%20Twitter%20Case%20Gets%20it%20Wrong%20Again&amp;url=https%3A//www.eff.org/ru/deeplinks/2012/07/court-ows-twitter-case-gets-it-wrong-again" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/diaspora48.png" alt="Share on Diaspora" /></a> <a href="https://supporters.eff.org/join" style="background-color:#cc0000; color:#ffffff; text-decoration:none; cursor:pointer; padding:5px 8px; font-family:verdana; font-weight:bold; border-radius:8px; text-shadow: 1px 1px #660000; text-transform:uppercase;">Join EFF</a></div>Thu, 05 Jul 2012 22:06:21 +0000Hanni Fakhoury71151 at https://www.eff.orgLegal AnalysisFree SpeechAnonymityPrivacyLocational PrivacySearch Incident to ArrestSocial NetworksEFF Tells CA Supreme Court Warrantless DNA Collection Unconstitutionalhttps://www.eff.org/ru/deeplinks/2012/05/eff-tells-ca-supreme-court-warrantless-dna-collection-unconstitutional
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>DNA is the most intimate and revealing part of the human body, with the potential to reveal a person -- and their family's -- <a href="http://scopeblog.stanford.edu/2012/01/what-personal-dna-testing-can-reveal-about-your-potential-health-and-future-well-being/">medical history and predisposition to disease</a>. Because it's so sensitive, we've filed an <a href="https://www.eff.org/files/Filed%20EFF%20Buza%20Amicus%20Brief.pdf">amicus brief</a> (PDF) in the California Supreme Court urging it to rule that the Fourth Amendment prohibits the warrantless collection of DNA from individuals presumed innocent who are not yet convicted of a crime.</p>
<p>Over the last few years, the federal government has been building up a massive DNA database called <a href="http://www.fbi.gov/about-us/lab/codis">CODIS</a> that stores DNA samples collected by local, state, and federal law enforcement officials investigating crimes. While CODIS was initially concerned only with the collection of DNA of convicted felons, the government is quickly expanding its reach to cover two more populations: individuals entering the immigration system, and arrestees. There are now over <a href="http://www.fbi.gov/about-us/lab/codis/ndis-statistics">10 million DNA samples</a> in CODIS from all over the country, and <a href="http://www.fbi.gov/about-us/lab/codis/ndis-statistics#California">17% of them</a> are from California. </p>
<p>We recently published a <a href="https://www.eff.org/document/fingerprints-dna-biometric-data-collection-us-immigrant-communities-and-beyond">white paper</a> explaining in detail biometric collection in the immigration system. And we've <a href="https://www.eff.org/press/archives/2011/07/26">repeatedly</a> <a href="https://www.eff.org/deeplinks/2011/12/time-supreme-court-weigh-forced-dna-collection">warned</a> <a href="https://www.eff.org/deeplinks/2012/03/eff-again-reminds-court-forced-warrantless-dna-collection-violates-fourth">courts</a> across the country in numerous amicus briefs that the government's warrantless collection of DNA from arrestees -- individuals who have not yet been convicted of a crime -- is unconstitutional. While federal courts have upheld the practice, last summer the <a href="http://blogs.findlaw.com/california_case_law/2011/08/appeals-court-overturns-dna-collection.html">California Court of Appeal ruled</a> in <em><a href="https://www.eff.org/files/buza%20opinion.pdf">People v. Buza</a></em> (PDF) that California's warrantless DNA collection, and the placing of the samples into CODIS, is unconstitutional. And earlier this year, the <a href="http://volokh.com/2012/04/24/maryland-high-court-usually-no-warrantless-dna-seizures-from-arrestees/">Maryland Court of Appeal</a> found in <em><a href="http://mdcourts.gov/opinions/coa/2012/68a11.pdf">King v. State</a></em> (PDF) most warrantless arrestee DNA collection unconstitutional.</p>
<p>With the <em>Buza</em> decision now on review to the California Supreme Court, our amicus brief urges the affirmance of the lower court's decision. We note that advances in technology have made DNA collection cheaper, and thus easier and more widespread. And while the Fourth Amendment acknowledges that privacy rights of individuals convicted of a crime are diminished, expanding warrantless DNA collection to individuals merely arrested for a crime -- along with individuals in the immigration system who have no criminal record -- are steps on a course towards a future where everyone's DNA is collected and maintained by the government, whether they were ever suspected of anything at all.</p>
<p>We're optimistic that with the decisions in <em>Buza</em> and <em>King</em>, courts are beginning to fully grasp the ability of technology to shrink privacy -- and see that DNA collection should be narrowed, not expanded.</p>
</div></div></div><div class="field field-name-field-related-cases field-type-node-reference field-label-above"><div class="field-label">Related Cases:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/ru/cases/us-v-pool">US v. Pool</a></div><div class="field-item odd"><a href="/ru/foia/federal-dna-collection">Federal DNA Collection</a></div></div></div><div class="share-links" style="margin-bottom:10px"><br/>Share this: <a href="https://twitter.com/intent/tweet?text=EFF%20Tells%20CA%20Supreme%20Court%20Warrantless%20DNA%20Collection%20Unconstitutional&amp;url=https%3A//www.eff.org/ru/deeplinks/2012/05/eff-tells-ca-supreme-court-warrantless-dna-collection-unconstitutional&amp;related=eff&amp;via=eff" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/twitter48.png" alt="Share on Twitter" /></a> <a href="https://www.facebook.com/share.php?t=EFF%20Tells%20CA%20Supreme%20Court%20Warrantless%20DNA%20Collection%20Unconstitutional&amp;u=https%3A//www.eff.org/ru/deeplinks/2012/05/eff-tells-ca-supreme-court-warrantless-dna-collection-unconstitutional" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/facebook48.png" alt="Share on Facebook" /></a> <a href="https://plus.google.com/share?url=https%3A//www.eff.org/ru/deeplinks/2012/05/eff-tells-ca-supreme-court-warrantless-dna-collection-unconstitutional" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/gplus48.png" alt="Share on Google+" /></a> <a href="https://sharetodiaspora.github.com/?title=EFF%20Tells%20CA%20Supreme%20Court%20Warrantless%20DNA%20Collection%20Unconstitutional&amp;url=https%3A//www.eff.org/ru/deeplinks/2012/05/eff-tells-ca-supreme-court-warrantless-dna-collection-unconstitutional" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/diaspora48.png" alt="Share on Diaspora" /></a> <a href="https://supporters.eff.org/join" style="background-color:#cc0000; color:#ffffff; text-decoration:none; cursor:pointer; padding:5px 8px; font-family:verdana; font-weight:bold; border-radius:8px; text-shadow: 1px 1px #660000; text-transform:uppercase;">Join EFF</a></div>Mon, 04 Jun 2012 17:48:19 +0000Hanni Fakhoury70904 at https://www.eff.orgLegal AnalysisBiometricsSearch Incident to ArrestTransparencyThis Week in Transparency: New Documents Posted to EFF's Site, DOJ's Transparency Promises Unfulfilled, and the Secrecy of Dissenthttps://www.eff.org/ru/deeplinks/2012/04/week-transparency-new-documents-dojs-transparency-promises-unfulfilled-and-secrecy
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>EFF Releases New Government Documents on Drones and Law Enforcement Training</strong></p>
<p>EFF recently posted three new sets of documents obtained through FOI requests. Yesterday, as <a href="http://online.wsj.com/article/SB10001424052702304331204577354331959335276.html?mod=WSJ_hp_LEFTTopStories">reported in the <i>Wall Street Journal</i></a>, <a href="https://www.eff.org/deeplinks/2012/04/faa-releases-its-list-drone-certificates-leaves-many-questions-unanswered">EFF released the lists of private and public entities</a> that have been granted authorization by the Federal Aviation Administration (FAA) to fly drones in the United States. The lists were obtained through <a href="https://www.eff.org/foia/faa-drone-authorizations">EFF’s lawsuit against the FAA</a>, which seeks a variety of information on domestic drone authorization and use. The lists provide the public with the most thorough accounting to date of the organizations operating drones within our borders. Yesterday, along with EFF’s disclosure, Congressmen Ed Markey and Joe Barton <a href="http://markey.house.gov/sites/markey.house.gov/files/documents/4-19-12.Letter%20FAA%20Drones%20.pdf">sent the FAA a letter</a> (pdf) asking the agency to disclose information similar to that sought in EFF’s FOIA suit.</p>
<p>A second, related release, <a href="https://www.eff.org/deeplinks/2012/04/miami-dade-pd-releases-information-about-its-drone-program-will-faa-follow-suit"><span>which we blogged about previously</span></a><span>, was obtained through a public records request to the Miami-Dade Police Department for information on it’s drone program. In response, the Miami PD released its </span><a href="https://www.eff.org/document/miami-dade-pd-drone-certificate-authorization"><span>Certificate of Authorization (COA)</span></a><span> for its drone – the first time a COA has been made publicly available.</span></p>
<p>Finally, EFF also <a href="https://www.eff.org/foia/federal-law-enforcement-mobile-device-investigations-program"><span>posted over 2,000 pages of records</span></a><span> released in response to a FOIA request to DHS’ </span><a href="http://www.fletc.gov/"><span>Federal Law Enforcement Training Center (FLETC)</span></a><span>. EFF sought information on FLETC’s Mobile Device Investigation Program, which teaches federal officials how to conduct investigations based on information obtained from cell phones and other electronic devices.</span></p>
<p><strong>EFF Attorney Weighs in on DOJ's Unfulfilled Promise of Transparency</strong></p>
<p>Earlier this week, EFF Senior Counsel <a href="https://www.eff.org/about/staff/david-sobel">David Sobel </a>co-authored <span></span><a href="http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202548914622&amp;An_unfulfilled_promise_of_open_government&amp;slreturn=1">an article in the <i>National Law Journal</i></a> documenting – yet again – the Obama administration’s failure to live up to its promise of openness and transparency.</p>
<p>While the Obama administration continues to tout its transparency accomplishments, the authors noted that, “<span>[a]s attorneys who each have more than 30 years' experience litigating FOIA cases in the federal courts, our assessment is decidedly less rosy.” In particular, the article faulted the Department of Justice (DOJ) for the “breadth of situations in which DOJ will fight to maintain official secrecy,” even in spite of a clear promise from Attorney General Holder to only defend FOIA withholdings when disclosure was clearly prohibited or would produce actual harm.</span></p>
<p>The article concludes:</p>
<blockquote><p>Three years ago, we rejoiced when President Obama re-established important open-government tenets, and his new attorney general promised DOJ would vigorously enforce the law's public disclosure requirements. Unfortunately, we are still waiting to see that promise fulfilled.</p></blockquote>
<p>You can read the full article <a href="http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202548914622&amp;An_unfulfilled_promise_of_open_government&amp;slreturn=1"><span>here</span></a>.</p>
<p><strong>The Secrecy of Dissent Within the Government</strong></p>
<p>Two items this week demonstrated the troubling issue of government secrecy ocurring at the intersection of questionable governmental policies and internal disagreement between individuals and agencies within the federal government.</p>
<p>The first, <a href="http://www.wired.com/dangerroom/2012/04/secret-torture-memo/">reported by Spencer Ackerman at <i>Wired</i></a>, concerns a secret memo written in February 2006 by a top adviser to the State Department. The memo warned that the Bush administration’s use of “cruel, inhuman or degrading” interrogation techniques amounted to a “felony war crime.” However, not only was the memo secret until this week (after <a href="http://washingtonindependent.com/40052/state-department-unaware-of-zelikows-torture-dissent">a three-year wait for the State Department to respond to a FOIA request</a>), but, according to the memo’s author, Bush administration officials determined the “memo was not considered appropriate for further discussion and that copies of [the] memo should be collected and destroyed.” Luckily a copy survived and you can read <i>Wired</i>’s full report, and the released memo, <a href="http://www.wired.com/dangerroom/2012/04/secret-torture-memo/">here</a>.</p>
<p>In a second, strikingly similar example, a recently released memoir, <i><a href="http://www.amazon.com/Traitor-Whistleblower-American-Jesselyn-Radack/dp/0983992800/"><span>Traitor: The Whistleblower and the American Taliban</span></a></i><span>, describes the story of a Justice Department attorney who blew the whistle after her legal advice was disregarded. </span><a href="http://www.fas.org/blog/secrecy/2012/04/traitor.html"><span>A book review from <i>Secrecy</i> <i>News</i> provides the background</span></a><span>: Following the apprehension of Jon Walker Lindh—an American citizen arrested in Afghanistan for fighting American forces alongside the Taliban—Jesselyn Radack, a DOJ attorney and specialist in legal ethics, advised that Lindh not be interrogated without an attorney present. Not only was Lindh not provided an attorney during interrogation, but the DOJ “publicly denied having received any such legal advice, and even destroyed evidence to the contrary.” Steven Aftergood of </span><i><span>Secrecy</span></i><span> <i>News</i> writes: </span></p>
<blockquote><p>Ms. Radack was not looking for a fight, but only to do the right thing. For her trouble, she was forced out of her Justice Department position, put under criminal investigation, fired from her subsequent job, reported to the state bar, and put on the “no fly” list.</p></blockquote>
<p>You can read the full review <a href="http://www.fas.org/blog/secrecy/2012/04/traitor.html">here</a>.</p>
<p>Some secrecy is inevitably needed so that officials within the federal government feel free to air viewpoints internally and without inhibition. Ultimately – and at least in theory – this allows lower level employees to provide candid opinions, and permits officials with decision-making authority to choose the best legal or policy analysis from the many. This, in turn, ensures sound government policies are ultimately chosen.</p>
<p>Secrecy in the name of honest debate is one thing, but the government’s action in both these cases demonstrates something far more troubling: the destruction of dissent. Not only does the destruction of these memos likely run afoul of <a href="http://www.archives.gov/records-mgmt/publications/agency-recordkeeping-requirements.html#status">government record-keeping regulations</a>, but the suppression and destruction of the evidence of dissenting viewpoints undermines the integrity of the government’s final policy position. The need to silence dissent is a hallmark of flimsy ideas.</p>
</div></div></div><div class="share-links" style="margin-bottom:10px"><br/>Share this: <a href="https://twitter.com/intent/tweet?text=This%20Week%20in%20Transparency%3A%20New%20Documents%20Posted%20to%20EFF%27s%20Site%2C%20DOJ%27s%20Transparency%20Promises%20Unfulfilled%2C%20and%20the%20Secrecy%20of%20Dissent&amp;url=https%3A//www.eff.org/ru/deeplinks/2012/04/week-transparency-new-documents-dojs-transparency-promises-unfulfilled-and-secrecy&amp;related=eff&amp;via=eff" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/twitter48.png" alt="Share on Twitter" /></a> <a href="https://www.facebook.com/share.php?t=This%20Week%20in%20Transparency%3A%20New%20Documents%20Posted%20to%20EFF%27s%20Site%2C%20DOJ%27s%20Transparency%20Promises%20Unfulfilled%2C%20and%20the%20Secrecy%20of%20Dissent&amp;u=https%3A//www.eff.org/ru/deeplinks/2012/04/week-transparency-new-documents-dojs-transparency-promises-unfulfilled-and-secrecy" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/facebook48.png" alt="Share on Facebook" /></a> <a href="https://plus.google.com/share?url=https%3A//www.eff.org/ru/deeplinks/2012/04/week-transparency-new-documents-dojs-transparency-promises-unfulfilled-and-secrecy" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/gplus48.png" alt="Share on Google+" /></a> <a href="https://sharetodiaspora.github.com/?title=This%20Week%20in%20Transparency%3A%20New%20Documents%20Posted%20to%20EFF%27s%20Site%2C%20DOJ%27s%20Transparency%20Promises%20Unfulfilled%2C%20and%20the%20Secrecy%20of%20Dissent&amp;url=https%3A//www.eff.org/ru/deeplinks/2012/04/week-transparency-new-documents-dojs-transparency-promises-unfulfilled-and-secrecy" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/diaspora48.png" alt="Share on Diaspora" /></a> <a href="https://supporters.eff.org/join" style="background-color:#cc0000; color:#ffffff; text-decoration:none; cursor:pointer; padding:5px 8px; font-family:verdana; font-weight:bold; border-radius:8px; text-shadow: 1px 1px #660000; text-transform:uppercase;">Join EFF</a></div>Fri, 20 Apr 2012 17:08:08 +0000Mark Rumold70484 at https://www.eff.orgNews RoundupTransparencyPrivacyCell TrackingSearch Incident to ArrestA Picture is Worth a Thousand Words, Including Your Locationhttps://www.eff.org/ru/deeplinks/2012/04/picture-worth-thousand-words-including-your-location
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>At first blush, it seems obvious that a picture could reveal your location. A picture of you standing in front of the Golden Gate Bridge sensibly leads to the conclusion you're in the San Francisco Bay Area when the photo was taken. But now that <a href="https://mashable.com/2011/12/22/photos-and-videos-smartphones/">smartphones are quickly supplanting traditional digital cameras</a>, and even traditional <a href="http://gizmodo.com/5903334/samsungs-pro-compact-cameras-get-juiced-with-wi+fi/gallery/1">cameras now have wifi</a> built in, many more pictures are finding their way onto the web, in places like Twitter, Flickr, Google+ and Tumblr. In a span of 10 days, popular photo social network <a href="http://techcrunch.com/2012/04/13/instagrams-user-count-now-at-40-million-saw-10-million-new-users-in-last-10-days/">Instagram added 10 million new users</a> as a result of the release of its Android app and its acquisition by Facebook. And the location data hidden in these quick and candid pictures -- even when your location isn't as obvious as "standing in front of the Golden Gate Bridge" -- is becoming another easy way for anyone, including law enforcement, to figure out where you are.</p>
<p>Take the case of "w0rmer," a member of an Anonymous offshoot called "CabinCr3w," for example. <a href="https://www.eff.org/files/W0rmer%20complaint.pdf">According to the federal government</a> (PDF), "w0rmer" broke into a number of <a href="http://www.huffingtonpost.com/2012/02/08/west-virginia-chiefs-of-police-association_n_1262892.html">different</a> <a href="http://blog.al.com/businessnews/2012/02/anonymous_claims_to_have_hacke.html">law enforcement</a> <a href="http://www.databreaches.net/?p=23257">databases</a> and obtained a wealth of sensitive information. In a Twitter post, "w0rmer" provided a link to a website that contained the sensitive information as well as a <a href="http://gizmodo.com/5901430/these-breasts-nailed-anonymous-hacker-in-fbi-case">picture</a> <a href="http://www.smh.com.au/technology/technology-news/hacking-cases-body-of-evidence-20120411-1wsbh.html">of a woman</a> (NSFW) posing with a sign taunting the authorities. Because the picture was taken with an iPhone 4, which contains a GPS device built in, the GPS coordinates of where the picture was taken was embedded into the picture's <a href="https://en.wikipedia.org/wiki/Exchangeable_image_file_format">EXIF</a> metadata. The FBI was able to use the EXIF data to determine that the picture was taken at a house in Wantirna South, Australia. </p>
<p>The FBI tracked down other online references to "w0rmer," with one website containing the name Higinio Ochoa. The feds took a look at Ochoa's Facebook account, which detailed that his girlfriend was Australian. Combined with the EXIF metadata, the government believed they had corroborated the identity of "w0rmer" as Ochoa, and in turn arrested him. </p>
<p>Even for photos not taken with a smartphone and not embedded with GPS coordinates (for example, point and shoot or SLR cameras that do not geotag), it's still possible for the police to get location information through EXIF metadata. You can upload a picture <a href="http://regex.info/exif.cgi">here</a> and see the metadata stored in a picture for yourself. Contained within that metadata is the camera's serial number. Armed with that information, the police can easily <a href="http://cameratrace.com/">scour the internet</a> for other pictures tagged with the same serial number. In Australia, a man whose <a href="http://www.smh.com.au/digital-life/cameras/snapped-camera-thieves-meet-their-match-20111229-1pdkw.html">camera was stolen</a> was able to track it down using <a href="http://www.stolencamerafinder.com/">stolencamerafinder.com</a> because the thief had taken a picture with the camera and uploaded it to Flickr, where he had listed his address. But even if the thief's Flickr site didn't contain his address, police could have subpoenaed Flickr - like law enforcement have <a href="https://www.eff.org/deeplinks/2012/02/malcolm-harris-occupy-wall-street-twitter-government-pressure">attempted to do with Twitter</a> - for information concerning a user's temporarily assigned IP address, as well as session times and logs, to eventually determine where a person uploaded a picture from. All of which can be used to piece together a <a href="https://www.eff.org/deeplinks/2011/03/what-location-tracking-looks">snapshot</a> of not only your <a href="http://www.zeit.de/datenschutz/malte-spitz-data-retention">movements</a>, but as in the case of "w0rmer," potentially your identity. In the United States, police are being trained about the <a href="https://www.justnet.org/pdf/EXIF.pdf">broader investigative</a> (PDF) potential of this information.</p>
<p>It might be tempting to say the problem is overblown, because some social media sites, including Facebook and Twitter, strip the metadata out of photos uploaded by their members. But not all do. <a href="https://twitpic.zendesk.com/entries/456930-how-do-i-add-location-to-my-photos-and-videos-on-twitpic">Twitpic</a>'s default is to use a picture's location tag unless you opt out. Flickr gives you the option to hide a photo's EXIF data, but many casual photographers tempted by the rapid growth of photo sharing may not understand what EXIF data is, and the implication of making it publicly available.</p>
<p>The bigger problem is that courts have been expanding the police's right to search digital devices without a warrant under the "<a href="https://www.eff.org/deeplinks/2011/11/year-smartphone">search incident to arrest</a>" exception of the Fourth Amendment. While many of the cases involve warrantless searches of cell phones, there has been at least <a href="https://www.eff.org/files/Juvenile.PDF">one case in California</a> (PDF) where the police used the "search incident to arrest" exception to search a juvenile's digital camera. And there are other <a href="http://www.courthousenews.com/2010/12/13/32527.htm">reported incidents</a> of photojournalists having their cameras confiscated and searched when covering political protests and rallies. If the cops have the physical camera (and thus the memory cards that store the photos), whatever scrubbing that happens when a photo is uploaded to the web is no obstacle.</p>
<p>So if you value your privacy, you should take steps to ensure the EXIF metadata in your pictures isn't an easy way for anyone on the Internet to figure out your location. If you're using a smartphone to take pictures, <a href="http://icanstalku.com/how.php#disable">disable geotagging</a> from your pictures. If you're uploading your pictures to a website like Flickr or Twitpic that defaults to automatically include EXIF data and location information, take the steps to turn it off. And if you're using a traditional SLR or point and shoot camera that doesn't geotag, but does contain a breadth of EXIF data, the make sure you scrub its metadata before you upload it on the Internet. There are <a href="http://appscout.pcmag.com/utilities/273593-jpeg-png-stripper-scrub-photos-before-uploading">free online tools</a> that will help you do precisely that. These simple steps will help ensure that the thousand words a picture describes doesn't include your location. </p>
</div></div></div><div class="share-links" style="margin-bottom:10px"><br/>Share this: <a href="https://twitter.com/intent/tweet?text=A%20Picture%20is%20Worth%20a%20Thousand%20Words%2C%20Including%20Your%20Location&amp;url=https%3A//www.eff.org/ru/deeplinks/2012/04/picture-worth-thousand-words-including-your-location&amp;related=eff&amp;via=eff" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/twitter48.png" alt="Share on Twitter" /></a> <a href="https://www.facebook.com/share.php?t=A%20Picture%20is%20Worth%20a%20Thousand%20Words%2C%20Including%20Your%20Location&amp;u=https%3A//www.eff.org/ru/deeplinks/2012/04/picture-worth-thousand-words-including-your-location" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/facebook48.png" alt="Share on Facebook" /></a> <a href="https://plus.google.com/share?url=https%3A//www.eff.org/ru/deeplinks/2012/04/picture-worth-thousand-words-including-your-location" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/gplus48.png" alt="Share on Google+" /></a> <a href="https://sharetodiaspora.github.com/?title=A%20Picture%20is%20Worth%20a%20Thousand%20Words%2C%20Including%20Your%20Location&amp;url=https%3A//www.eff.org/ru/deeplinks/2012/04/picture-worth-thousand-words-including-your-location" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/diaspora48.png" alt="Share on Diaspora" /></a> <a href="https://supporters.eff.org/join" style="background-color:#cc0000; color:#ffffff; text-decoration:none; cursor:pointer; padding:5px 8px; font-family:verdana; font-weight:bold; border-radius:8px; text-shadow: 1px 1px #660000; text-transform:uppercase;">Join EFF</a></div>Fri, 20 Apr 2012 16:06:48 +0000Hanni Fakhoury70454 at https://www.eff.orgLegal AnalysisPrivacyCell TrackingLocational PrivacySearch Incident to ArrestSocial NetworksLocal Cops Following Big Brother's Lead, Getting Cell Phone Location Data Without a Warranthttps://www.eff.org/ru/deeplinks/2012/04/local-cops-following-big-brothers-lead-getting-cell-phone-location-data-without
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p class="p1">New data from law enforcement agencies across the country has confirmed what EFF has long been afraid of: while police are routinely using cell phone location tracking information, only a handful of agencies are bothering to obtain search warrants.</p>
<p class="p2">Since 2005, we've been <a href="https://www.eff.org/issues/cell-tracking">beating the drum loudly</a>, warning that the government's attempts to track a person's physical location through their cell phone requires a search warrant. As we've said <a href="https://www.eff.org/deeplinks/2010/11/location-location-location-three-recent-court">again</a> and <a href="https://www.eff.org/deeplinks/2011/11/2011-in-review-location-privacy">again</a>, because cell phone tracking can give the government a <a href="https://www.eff.org/deeplinks/2011/03/what-location-tracking-looks">snapshot of a person's life through their movements</a>, a search warrant is necessary to safeguard against privacy intrusions.</p>
<p class="p1">Now new data -- obtained from a <a href="http://www.aclu.org/protecting-civil-liberties-digital-age/cell-phone-location-tracking-public-records-request">coordinated FOIA request</a> by the <a href="http://www.aclu.org/">ACLU</a> -- shows just how pervasive cell phone tracking is throughout the United States. The ACLU obtained 5,500 pages of records from over 200 different law enforcement agencies. The records revealed that most law enforcement agencies are using location tracking information routinely, with <a href="http://www.aclu.org/protecting-civil-liberties-digital-age/cell-phone-tracking-request-law-enforcement-agencies">only 10 out of the more than 200</a> claiming they had not tracked cell phones.</p>
<p>And even more troubling, the records demonstrate that different agencies use different standards to obtain this information, with only a few agencies obtaining search warrants in order to track. It looks like local law enforcement agencies are taking their lead from the federal government, who has been using cell location data obtained without a search warrant for years. The case of Antoine Jones is one example. If his name sounds familiar, its because in January of this year, the U.S. Supreme Court ruled in a <a href="https://www.eff.org/press/releases/unanimous-supreme-court-ensures-americans-have-protections-gps-surveillance">landmark decision</a> that the warrantless surveillance of Jones for 28 days through a GPS device violated the Fourth Amendment. Now unable to use the GPS data, the <a href="http://www.wired.com/threatlevel/2012/03/feds-move-to-cell-site-data/">government is turning to cell location data</a> which it also obtained without a search warrant. In another case, <a href="https://www.eff.org/cases/fifth-circuit-cell-phone-tracking-case">the government has appealed</a> to the Fifth Circuit Court of Appeals to reverse the decision of a magistrate judge - who we supported in an <a href="https://www.eff.org/document/amicus-brief-us-court-appeals-5th-circuit">amicus brief</a> - that required the government to obtain a search warrant in order to obtain cell tracking information. A <a href="https://www.eff.org/files/CollingsCSLIOrder.pdf">magistrate judge in Massachusetts</a> (PDF), and a <a href="https://www.eff.org/files/MDCSLIOpinion.pdf">district court judge in Maryland</a> (PDF) have recently reached the opposite conclusion, ruling that the government didn't need a search warrant to obtain cell location data. </p>
<p>To civil liberties organizations like us and the ACLU, the privacy implications of obtaining this data without a search warrant are obvious and troubling. But it seems that at least one law enforcement agency recognized the likely public outrage too. <a href="https://www.nytimes.com/2012/04/01/us/police-tracking-of-cellphones-raises-privacy-fears.html?_r=1&amp;ref=technology">The <em>New York Times</em> reports</a> that the Iowa City Police Department warned officers in a training manual not to "mention to the public or the media the use of cellphone technology or equipment used to locate the targeted subject,” and even to keep them out of police reports.</p>
<p>But the story doesn't just end with location data. Because once the police find the phone they've been tracking, its getting easier (and more frequent) for them to search the contents of the phone without a warrant, and to obtain reams of your personal data in minutes. A video demonstration posted online by <a href="http://www.msab.com/">Micro Systemation</a>, a Swedish mobile forensics company that sells its devices to law enforcement agencies, demonstrated how easily police can crack a cell phone's security and suck all of the data out in seconds. Unsurprisingly, once the video went <a href="http://gizmodo.com/5896992/the-xry-cracking-tool-is-unimpressed-with-your-iphones-defenses">viral last week</a>, it <a href="http://www.forbes.com/sites/andygreenberg/2012/03/27/heres-how-law-enforcement-cracks-your-iphones-security-code-video/">was pulled from YouTube</a>.</p>
<p>And as we've <a href="https://www.eff.org/deeplinks/2011/11/year-smartphone">noted before,</a> recent court decisions have allowed the police to search an arrested person's cell phone "incident to arrest" without a warrant, or any reason to believe they will find anything incriminating on it. The Seventh Circuit Court of Appeals is the latest court to authorize this practice, issuing a <a href="https://www.eff.org/files/FloresLopez7thCirCellPhoneIncidenttoArrest.pdf">decision</a> (PDF) in February finding no Fourth Amendment violation in a warrantless search of a cell phone of an arrested person. The police have now been armed to turn any pretextual arrest - say, an <a href="https://www.eff.org/deeplinks/2012/02/malcolm-harris-occupy-wall-street-twitter-government-pressure">Occupy Wall Street arrest for disorderly conduct</a> - into a cell phone fishing expedition, getting access to your calendar, contacts, emails, text messages, voicemails and reading and web browsing history.</p>
<p>All this gloom and doom can be fixed in two ways. First, courts need to recognize that the Fourth Amendment prohibits pervasive and sustained government surveillance unless the police get a search warrant. For centuries, the government's biggest limitation was technological; it was difficult - if not impossible - to follow a person for days at a time. But with surveillance tools becoming smaller and cheaper, its easier for the government to use surveillance information from our own cars to investigate <a href="http://espn.go.com/nfl/story/_/id/7765279/ryan-leaf-arrested-montana-again-gps-implicates-ex-nfl-qb-crime">mundane, non-violent crimes</a>. The Fourth Amendment needs to keep up with the changes in technology in order for its longstanding privacy protections to have meaning.</p>
<p>Second, Congress needs to step up and update our electronic privacy laws. The law that governs cell phone location data - the <a href="http://www.law.cornell.edu/uscode/text/18/part-I/chapter-119">Electronic Communications Privacy Act</a> ("ECPA") - is more than 25 years old, enacted in a time where cell phones were far from ubiquitous. The law has been unable to keep up with the rapid technological changes that have occurred since 1986, and the conflicting court opinions on the constitutionality of warrantless cell phone location tracking noted above is the end result. It's time for Congress to reexamine the law and bring it in line with our expectations of privacy today.</p>
<p>You can do your part by getting informed and checking out the <a href="http://www.aclu.org/maps/your-local-law-enforcement-tracking-your-cell-phones-location">ACLU's location data map</a> to figure out whether the cops where you live use location tracking data. Regardless of whether or not you live in a state where the cops track, you can tell Congress that its time to fix our broken and ancient technology laws by signing our <a href="https://action.eff.org/o/9042/p/dia/action/public/?action_KEY=8225">action alert</a>, and taking a stand to protect our locational privacy from the prying eyes of the government.</p>
</div></div></div><div class="field field-name-field-related-cases field-type-node-reference field-label-above"><div class="field-label">Related Cases:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/ru/cases/us-v-jones">US v. Jones</a></div><div class="field-item odd"><a href="/ru/cases/united-states-v-davis">Quartavious Davis v. United States</a></div><div class="field-item even"><a href="/ru/cases/united-states-v-graham">United States v. Graham</a></div><div class="field-item odd"><a href="/ru/cases/re-telephone-info-koh">In re Telephone Info (Koh)</a></div><div class="field-item even"><a href="/ru/cases/re-telephone-info">In re Telephone Info (Cousins)</a></div><div class="field-item odd"><a href="/ru/cases/fifth-circuit-cell-phone-tracking-case">Fifth Circuit Cell Phone Tracking Case</a></div></div></div><div class="share-links" style="margin-bottom:10px"><br/>Share this: <a href="https://twitter.com/intent/tweet?text=Local%20Cops%20Following%20Big%20Brother%27s%20Lead%2C%20Getting%20Cell%20Phone%20Location%20Data%20Without%20a%20Warrant&amp;url=https%3A//www.eff.org/ru/deeplinks/2012/04/local-cops-following-big-brothers-lead-getting-cell-phone-location-data-without&amp;related=eff&amp;via=eff" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/twitter48.png" alt="Share on Twitter" /></a> <a href="https://www.facebook.com/share.php?t=Local%20Cops%20Following%20Big%20Brother%27s%20Lead%2C%20Getting%20Cell%20Phone%20Location%20Data%20Without%20a%20Warrant&amp;u=https%3A//www.eff.org/ru/deeplinks/2012/04/local-cops-following-big-brothers-lead-getting-cell-phone-location-data-without" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/facebook48.png" alt="Share on Facebook" /></a> <a href="https://plus.google.com/share?url=https%3A//www.eff.org/ru/deeplinks/2012/04/local-cops-following-big-brothers-lead-getting-cell-phone-location-data-without" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/gplus48.png" alt="Share on Google+" /></a> <a href="https://sharetodiaspora.github.com/?title=Local%20Cops%20Following%20Big%20Brother%27s%20Lead%2C%20Getting%20Cell%20Phone%20Location%20Data%20Without%20a%20Warrant&amp;url=https%3A//www.eff.org/ru/deeplinks/2012/04/local-cops-following-big-brothers-lead-getting-cell-phone-location-data-without" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/diaspora48.png" alt="Share on Diaspora" /></a> <a href="https://supporters.eff.org/join" style="background-color:#cc0000; color:#ffffff; text-decoration:none; cursor:pointer; padding:5px 8px; font-family:verdana; font-weight:bold; border-radius:8px; text-shadow: 1px 1px #660000; text-transform:uppercase;">Join EFF</a></div>Tue, 03 Apr 2012 20:51:17 +0000Hanni Fakhoury70175 at https://www.eff.orgLegal AnalysisPrivacyCell TrackingLocational PrivacySearch Incident to ArrestEFF Again Reminds Court Forced Warrantless DNA Collection Violates Fourth Amendmenthttps://www.eff.org/ru/deeplinks/2012/03/eff-again-reminds-court-forced-warrantless-dna-collection-violates-fourth
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>Over the last few years, we've <a href="https://www.eff.org/deeplinks/2011/12/time-supreme-court-weigh-forced-dna-collection">been</a> <a href="https://www.eff.org/press/archives/2011/07/26">battling</a> <a href="http://www.law.cornell.edu/uscode/text/42/14135a">laws</a> that require a person arrested to give a DNA sample as part of the routine booking process. The law makes this DNA collection automatic and mandatory; law enforcement do not need a reason to collect the DNA and they can do so without a search warrant. Given the incredibly sensitive information that DNA can reveal about a person - details like a person's <a href="http://works.bepress.com/cgi/viewcontent.cgi?article=1017&amp;context=harold_krent">medical history, predisposition to disease and even sexual orientation</a> - government access to this information must be strictly limited. But a recent <a href="https://www.eff.org/files/Haskell%20Opinion.pdf">decision</a> (PDF) by the Ninth Circuit Court of Appeals found no constitutional problems with the government's ability to collect DNA from recent arrestees without a search warrant.</p>
<p>The case, <em><a href="http://aclunc.org/cases/active_cases/haskell_v._brown.shtml">Haskell v. Harris</a></em>, is a lawsuit brought by the <a href="http://aclunc.org/index.shtml">ACLU of Northern California</a>, challenging <a href="http://oag.ca.gov/bfs/prop69">Proposition 69</a>, a California initiative that requires the warrantless collection of DNA from any person arrested for a felony. The four plaintiffs in <em>Haskell</em> were all arrested for a variety of crimes, but ultimately none were convicted of anything. Nonetheless, at the time of their bookings, each person was required to provide a DNA sample to the police who, as required by California law, placed the DNA sample into <a href="http://www.fbi.gov/about-us/lab/codis">CODIS</a>, a DNA database maintained by the federal government. </p>
<p>Every state participates in CODIS, which allows law enforcement the ability to search DNA through the database. Almost all of the DNA in CODIS comes from the criminal justice system, with the federal government and 47 states collecting DNA from convicted felons, and 22 states and the federal government collecting DNA from individuals merely arrested for a crime. Once a DNA sample is collected, state and federal law enforcement can search CODIS for matches to other individuals or crime scenes already contained in CODIS. As of January 2012, CODIS had over <a href="http://www.fbi.gov/about-us/lab/codis/ndis-statistics">10 million DNA profiles</a> in its system, with over <a href="http://www.fbi.gov/about-us/lab/codis/ndis-statistics#California">17% of those samples</a> coming from the state of California.</p>
<p>The ACLU brought suit, challenging the warrantless collection and search of DNA from mere arrestees as violating the Fourth Amendment's prohibition against unreasonable searches and seizures. A three judge panel of the Ninth Circuit Court of Appeals in San Francisco rejected the challenge, finding the warrantless search reasonable under the Fourth Amendment. The ACLU asked the entire Ninth Circuit to rehear the case, and we're supporting their cause with an <a href="https://www.eff.org/files/Filed%20Haskell%20Amicus%20Brief.pdf">amicus brief</a> (pdf) of our own. </p>
<p>As we explain in our brief, a blanket, suspicionless collection of DNA for the sole purpose of law enforcement investigation cannot survive Fourth Amendment scrutiny. As DNA collection becomes cheaper, it also becomes more widespread. The collection of DNA from individuals in the criminal justice system exemplifies this risk. When the federal DNA Act that Prop 69 is modeled after was first enacted, it required DNA collection from individuals convicted of violent crimes. It was then expanded to include individuals convicted of any felony, violent or not, and now requires DNA collection from any individual merely arrested (not convicted) of a crime. California law has followed the same expansive course. And because a person who is not yet convicted of a crime is presumed innocent until proven guilty, Prop 69 essentially collects DNA from innocent people. The only way to avoid this slippery slope towards a future where everyone's DNA is collected by the government is by having courts insist on Fourth Amendment protection for DNA, and authorizing its collection only with a search warrant. As Chief Judge Kozinski of the Ninth Circuit has previously <a href="http://archive.ca9.uscourts.gov/coa/newopinions.nsf/BADFFFC872DBA30288256EF300802EBD/$file/0250380.pdf?openelement">written</a> (PDF) regarding warrantless DNA collection, “the time to put the cork back in the brass bottle is now—<em>before</em> the genie escapes.”</p>
</div></div></div><div class="field field-name-field-related-cases field-type-node-reference field-label-above"><div class="field-label">Related Cases:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/ru/cases/us-v-pool">US v. Pool</a></div><div class="field-item odd"><a href="/ru/cases/mitchell-v-us">Mitchell v. US</a></div><div class="field-item even"><a href="/ru/foia/federal-dna-collection">Federal DNA Collection</a></div><div class="field-item odd"><a href="/ru/foia/dna-collection">DNA Collection</a></div></div></div><div class="share-links" style="margin-bottom:10px"><br/>Share this: <a href="https://twitter.com/intent/tweet?text=EFF%20Again%20Reminds%20Court%20Forced%20Warrantless%20DNA%20Collection%20Violates%20Fourth%20Amendment&amp;url=https%3A//www.eff.org/ru/deeplinks/2012/03/eff-again-reminds-court-forced-warrantless-dna-collection-violates-fourth&amp;related=eff&amp;via=eff" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/twitter48.png" alt="Share on Twitter" /></a> <a href="https://www.facebook.com/share.php?t=EFF%20Again%20Reminds%20Court%20Forced%20Warrantless%20DNA%20Collection%20Violates%20Fourth%20Amendment&amp;u=https%3A//www.eff.org/ru/deeplinks/2012/03/eff-again-reminds-court-forced-warrantless-dna-collection-violates-fourth" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/facebook48.png" alt="Share on Facebook" /></a> <a href="https://plus.google.com/share?url=https%3A//www.eff.org/ru/deeplinks/2012/03/eff-again-reminds-court-forced-warrantless-dna-collection-violates-fourth" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/gplus48.png" alt="Share on Google+" /></a> <a href="https://sharetodiaspora.github.com/?title=EFF%20Again%20Reminds%20Court%20Forced%20Warrantless%20DNA%20Collection%20Violates%20Fourth%20Amendment&amp;url=https%3A//www.eff.org/ru/deeplinks/2012/03/eff-again-reminds-court-forced-warrantless-dna-collection-violates-fourth" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/diaspora48.png" alt="Share on Diaspora" /></a> <a href="https://supporters.eff.org/join" style="background-color:#cc0000; color:#ffffff; text-decoration:none; cursor:pointer; padding:5px 8px; font-family:verdana; font-weight:bold; border-radius:8px; text-shadow: 1px 1px #660000; text-transform:uppercase;">Join EFF</a></div>Wed, 21 Mar 2012 00:44:15 +0000Hanni Fakhoury70066 at https://www.eff.orgAnnouncementBiometricsPrivacySearch Incident to ArrestTransparency2011 in Review: Search Incident to Arrest and Your Cell Phonehttps://www.eff.org/ru/deeplinks/2011/11/year-smartphone
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p class="p1"><em>As the year draws to a close, EFF is looking back at the major trends influencing digital rights in 2011 and discussing where we are in the fight for a free expression, innovation, fair use, and privacy.</em></p>
<p>2011 saw <a href="http://blog.nielsen.com/nielsenwire/online_mobile/40-percent-of-u-s-mobile-users-own-smartphones-40-percent-are-android/">40% of all mobile phone users</a> in the United States carrying web-enabled smartphones, creating a cycle that results in <a href="http://www.wired.com/gadgetlab/2011/11/smartphone-price-points/">cheaper</a> smartphones and more first-time users. People who carry smartphones are usually carrying all of their sensitive information with them too. Today, phones do more than just store contacts and dial phone numbers. Now, people are carrying years of email correspondence, text and instant messages, bank and financial records, personal photos, calendars, websites they've visited, places they've visited, even the books they read. So, with all the mobile computing smartphones are capable of, it comes as no surprise that law enforcement wants to get their hands on the digital goodies. And unfortunately, in 2011 courts gave them the ammunition to do so.</p>
<p>The Fourth Amendment's prohibition against warrantless searches and seizures applies to cell phones, and <a href="https://www.eff.org/deeplinks/2010/02/eff-asks-court-suppress-evidence-illegally">EFF has long advocated</a> for the police to <a href="https://www.eff.org/press/archives/2011/04/04">come back with a warrant</a> before searching a cell phone. But in January 2011, the California Supreme Court ruled in <em><a href="http://www.courtinfo.ca.gov/opinions/archive/S166600.PDF">People v. Diaz</a> </em>(PDF), that the police were authorized to search any person's cell phone, without a warrant, after they had been arrested under the narrow <a href="https://www.eff.org/issues/search-incident-arrest">"search incident to arrest"</a> exception to the Fourth Amendment, that permits a brief search in the area immediately around a person for the purposes of officer safety and protection of evidence from immediate destruction. </p>
<p>We predicted <i>Diaz</i> would create routine privacy violations, and worried that officers could use a pretextual arrest to casually browse the data on a person's cell phone for any reason, even if that person is never charged with a crime. We weren't the only ones worried. In April, California Senator Mark Leno introduced a bill intending to revserse <em>Diaz</em> and require the police to obtain a warrant before searching a cell phone incident to arrest. Sponsored by the <a href="http://aclunc.org/">ACLU of Northern California</a>, and supported by an EFF <a href="https://www.eff.org/deeplinks/2011/05/eff-supports-california-bill-requiring-police-get-warrant-to-search-cell-phone">Action Alert</a>, the bill <a href="https://www.eff.org/deeplinks/2011/09/eff-supported-bill-requiring-warrant-cell-phone">passed through both houses of the California legislature</a> before being <a href="https://www.eff.org/deeplinks/2011/10/governor-brown-vetoes-warrant-protection-cell-phones">vetoed by Governor Jerry Brown</a>. As Governor Brown <a href="http://gov.ca.gov/docs/SB_914_Veto_Message.pdf">explained it</a> (PDF), "Courts are better suited to resolve the complex and case specific issues relating to constitutional search-and-seizure protections." Yet, courts across the country have been struggling to deal with this issue. The Ohio Supreme Court, interpreting the same "constitutional search-and-seizure" protections as the California Supreme Court in <em>Diaz</em>, <a href="http://www.sconet.state.oh.us/PIO/summaries/2009/1215/081781.asp">reached the opposite conclusion</a>, prohibiting warrantless cell phone searches. Faced with this conflict of opinion, the United States Supreme Court, a week before Governor Brown's veto message, declined to review the <em>Diaz</em> opinion. </p>
<p>So with conflicting court opinions and the legislative fix in California struck down by a Governor who bowed to the <a href="http://www.wired.com/threatlevel/2011/10/warrantless-phone-searches/">pressure of law enforcement</a>, is there any good news?</p>
<p>Well, rest assured that EFF is committed to helping you protect the private information on your phone. This summer, we published a <a href="https://www.eff.org/wp/know-your-rights">"Know Your Rights"</a> guide (and <a href="https://www.eff.org/pages/know-your-digital-rights-quiz">quiz</a>!) designed to help you understand your rights when an officer's prying hands start reaching for your cell phone. And in the wake of Occupy Wall Street and their use of cell phones for coordinating protests and documenting abusive law enforcement techniques, we published a guide on how you can <a href="https://www.eff.org/deeplinks/2011/10/cell-phone-guide-occupy-wall-street-protesters-and-everyone-else">protect your cell phone</a> <em>before</em> you occupy (or do anything else for that matter). Even mobile phone app makers are getting in on the act, with apps like <a href="https://market.android.com/details?id=us.quadrant2.arrested">"I'm Getting Arrested"</a> for Android devices making <a href="http://www.nytimes.com/2011/10/30/nyregion/about-to-be-hauled-off-in-handcuffs-press-send.html">appearances at Occupy rallies</a>. And in 2012, we're going to be keeping an eye on warrantless cell phone searches, so that when <a href="http://gizmodo.com/5861407/semi+legal-bluetooth-call-recorder-did-the-wire-teach-us-nothing">new threats</a> to <a href="http://online.wsj.com/article/SB10001424052970204621904577014363024341028.html">cell phone privacy</a> emerge, EFF will be sure to pick up the call.</p>
</div></div></div><div class="share-links" style="margin-bottom:10px"><br/>Share this: <a href="https://twitter.com/intent/tweet?text=2011%20in%20Review%3A%20Search%20Incident%20to%20Arrest%20and%20Your%20Cell%20Phone&amp;url=https%3A//www.eff.org/ru/deeplinks/2011/11/year-smartphone&amp;related=eff&amp;via=eff" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/twitter48.png" alt="Share on Twitter" /></a> <a href="https://www.facebook.com/share.php?t=2011%20in%20Review%3A%20Search%20Incident%20to%20Arrest%20and%20Your%20Cell%20Phone&amp;u=https%3A//www.eff.org/ru/deeplinks/2011/11/year-smartphone" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/facebook48.png" alt="Share on Facebook" /></a> <a href="https://plus.google.com/share?url=https%3A//www.eff.org/ru/deeplinks/2011/11/year-smartphone" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/gplus48.png" alt="Share on Google+" /></a> <a href="https://sharetodiaspora.github.com/?title=2011%20in%20Review%3A%20Search%20Incident%20to%20Arrest%20and%20Your%20Cell%20Phone&amp;url=https%3A//www.eff.org/ru/deeplinks/2011/11/year-smartphone" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/diaspora48.png" alt="Share on Diaspora" /></a> <a href="https://supporters.eff.org/join" style="background-color:#cc0000; color:#ffffff; text-decoration:none; cursor:pointer; padding:5px 8px; font-family:verdana; font-weight:bold; border-radius:8px; text-shadow: 1px 1px #660000; text-transform:uppercase;">Join EFF</a></div>Fri, 30 Dec 2011 02:15:11 +0000Hanni Fakhoury67839 at https://www.eff.orgCommentaryKnow Your RightsPrivacySearch Incident to ArrestCell Phone Guide for Occupy Wall Street Protesters (and Everyone Else)https://www.eff.org/ru/deeplinks/2011/10/cell-phone-guide-occupy-wall-street-protesters-and-everyone-else
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>Occupy Wall Street has called for a <a href="http://occupywallst.org/article/october-15th-global-protest-info/">global day of action</a> on October 15, and protesters are mobilizing all over the world. In the United States, the Occupy Wall Street movement has already spawned sizeable protests in New York, Washington DC, Boston, Seattle, San Francisco, Oakland, Austin, and other cities. Several of these movements have faced opposition from their local police departments, including mass arrests.</p>
<p>Protesters of all political persuasions are increasingly documenting their protests -- and encounters with the police -- using electronic devices like cameras and cell phones. The following tips apply to protesters in the United States who are concerned about protecting their electronic devices when questioned, detained, or arrested by police. These are general guidelines; individuals with specific concerns should talk to an attorney.</p>
<h3>1. Protect your phone before you protest</h3>
<p><b>Think carefully about what’s on your phone before bringing it to a protest. </b>Your phone contains a wealth of private data, which can include your list of contacts, the people you have recently called, your text messages, photos and video, GPS location data, your web browsing history and passwords, and the contents of your social media accounts. We believe that the police are required to get a warrant to obtain this information, but the government sometimes asserts a right to search a phone <a href="https://www.eff.org/issues/search-incident-arrest">incident to arrest</a> -- without a warrant. (And in some states, <a href="https://www.eff.org/2011/october/governor-brown-vetoes-warrant-protection-cell-phones">including California</a>, courts have said this is OK.) To protect your rights, you may want to harden your existing phone against searches. You should also consider bringing a throwaway or alternate phone to the protest that does not contain sensitive data and which you would not mind losing or parting with for a while. If you have a lot of sensitive or personal information on your phone, the latter might be a better option.</p>
<p><b>Password-protect your phone - and consider encryption options. </b>To ensure the password is effective, set the “password required” time to zero, and restart phone before you leave your house. Be aware that merely password-protecting or locking your phone is not an effective barrier to expert forensic analysis. Some phones also have encryption options. <a href="http://whispersys.com/whispercore.html">Whispercore</a> is a full-disk encryption application for Android, and Blackberry also has encryption tools that might potentially be useful. Note that EFF has not tested these tools and does not endorse them, but they are worth checking into.</p>
<p><b>Back up the data on your phone. </b>Once the police have your phone, you might not get it back for a while. Also, something could happen, whether intentional or not, to delete information on your phone. While we believe it would be improper for the police to delete your information, it may happen anyway.</p>
<h3>2. You’re at the protest – now what?</h3>
<p><b>Maintain control over your phone.</b> That might mean keeping the phone on you at all times, or handing it over to a trusted friend if you are engaging in action that you think might lead to your arrest.</p>
<p><strong>Consider taking pictures and video.</strong> Just knowing that there are cameras watching can be enough to discourage police misconduct during a protest. EFF believes that you have the First Amendment right to document public protests, including police action. However, please understand that the police may disagree, citing various local and state laws. If you plan to record audio, you should review the Reporter’s Committee for Freedom of the Press helpful guide <a href="http://www.rcfp.org/taping/">Can We Tape?</a>.</p>
<h3>3. Help! Help! I’m being arrested</h3>
<p><b>Remember that you have a right to remain silent -- about your phone and anything else.</b> If questioned by police, you can politely but firmly ask to speak to your attorney.</p>
<p>If the police ask to see your phone, you can tell them you do not consent to the search of your device. They might still legally be able to search your phone without a warrant when they arrest you, but at least it’s clear that you did not give them permission to do so.</p>
<p>If the police ask for the password to your electronic device, you can politely refuse to provide it and <b>ask to speak to your lawyer</b>. Every arrest situation is different, and you will need an attorney to help you sort through your particular circumstance. Note that just because the police cannot compel you to give up your password, that doesn’t mean that they can’t pressure you. The police may detain you and you may go to jail rather than being immediately released if they think you’re refusing to be cooperative. You will need to decide whether to comply.</p>
<h3>4. The police have my phone, how do I get it back?</h3>
<p>If your phone or electronic device was illegally seized, and is not promptly returned when you are released, you can file a motion with the court to have your property returned. If the police believe that evidence of a crime was found on your electronic device, including in your photos or videos, the police can keep it as evidence. They may also attempt to make you forfeit your electronic device, but you can challenge that in court.</p>
<p>Cell phone and other electronic devices are an essential component of 21st century protests. Whether at Occupy Wall Street or elsewhere, all Americans can and should exercise their First Amendment right to free speech and assembly, while intelligently managing the risks to their property and privacy.</p>
</div></div></div><div class="share-links" style="margin-bottom:10px"><br/>Share this: <a href="https://twitter.com/intent/tweet?text=Cell%20Phone%20Guide%20for%20Occupy%20Wall%20Street%20Protesters%20%28and%20Everyone%20Else%29&amp;url=https%3A//www.eff.org/ru/deeplinks/2011/10/cell-phone-guide-occupy-wall-street-protesters-and-everyone-else&amp;related=eff&amp;via=eff" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/twitter48.png" alt="Share on Twitter" /></a> <a href="https://www.facebook.com/share.php?t=Cell%20Phone%20Guide%20for%20Occupy%20Wall%20Street%20Protesters%20%28and%20Everyone%20Else%29&amp;u=https%3A//www.eff.org/ru/deeplinks/2011/10/cell-phone-guide-occupy-wall-street-protesters-and-everyone-else" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/facebook48.png" alt="Share on Facebook" /></a> <a href="https://plus.google.com/share?url=https%3A//www.eff.org/ru/deeplinks/2011/10/cell-phone-guide-occupy-wall-street-protesters-and-everyone-else" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/gplus48.png" alt="Share on Google+" /></a> <a href="https://sharetodiaspora.github.com/?title=Cell%20Phone%20Guide%20for%20Occupy%20Wall%20Street%20Protesters%20%28and%20Everyone%20Else%29&amp;url=https%3A//www.eff.org/ru/deeplinks/2011/10/cell-phone-guide-occupy-wall-street-protesters-and-everyone-else" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/diaspora48.png" alt="Share on Diaspora" /></a> <a href="https://supporters.eff.org/join" style="background-color:#cc0000; color:#ffffff; text-decoration:none; cursor:pointer; padding:5px 8px; font-family:verdana; font-weight:bold; border-radius:8px; text-shadow: 1px 1px #660000; text-transform:uppercase;">Join EFF</a></div>Sat, 15 Oct 2011 01:05:31 +0000Eva Galperin67572 at https://www.eff.orgCommentaryPrivacySearch Incident to ArrestGovernor Brown Vetoes Warrant Protection for Cell Phoneshttps://www.eff.org/ru/deeplinks/2011/10/governor-brown-vetoes-warrant-protection-cell-phones
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>For the past six months, EFF has strongly supported SB 914, a bill recently passed by the California state legislature that would require police officers to get a warrant before searching through an arrested suspect’s cell phone.</p>
<p>Last month, the bill received overwhelming support from both Democrats and Republicans, passing the California State Assembly 70-0 and then the State Senate, 32-4. Despite such strong bipartisan support, Governor Brown disappointingly <a href="http://gov.ca.gov/docs/SB_914_Veto_Message.pdf">vetoed the bill</a> (PDF) yesterday.</p>
<p>SB 914, written in response to the California Supreme Court decision in <i>People v. Diaz</i>, upheld basic constitutional principles. It just maintained Fourth Amendment protection to the contents of cell phones, requiring officers to show a judge there is probable cause that the phone has evidence of a crime before it is searched incident to arrest.</p>
<p>The bill <a href="http://www.wired.com/threatlevel/2011/10/warrantless-phone-searches/">was strongly opposed</a> by law enforcement groups, yet SB 914’s effect on the police’s ability to do its job would be almost non-existent. As we <a href="https://www.eff.org/deeplinks/2011/05/eff-supports-california-bill-requiring-police-get-warrant-to-search-cell-phone">pointed out in May</a>, “cell phones pose no danger to the police, the threat of destruction of evidence can be easily remedied through simple preservation methods, and many arrests do not result in criminal prosecution at all.”</p>
<p>Privacy rights, however, will now take a major hit thanks to Gov. Brown’s veto.</p>
<p>As we warned when the bill was up for a vote, “Without SB 914, officers can use a pretextual arrest to casually browse the data on a person's cell phone for any reason, even if that person is never charged with a crime.” Smart phones, of course, contain a wealth of personal information, far beyond just call logs and address books. They store text messages, emails, photo albums, Internet browsing history and GPS location technology – and police will have unfettered access to all of it, even if they don’t suspect there is any evidence of a crime on the device.</p>
<p>This should be especially concerning for <span dir="ltr" id=":12h">Californians involved in large protests and rallies.</span> As we've seen in the recent Occupy Wall Street protests in New York, Seattle, Boston, and now San Francisco, the police have arrested protestors under a variety of pretenses. With Governor Brown’s veto, law enforcement will now be free to search through the cell phone of any arrested protestor and use its contents as evidence for alleged crimes that may have nothing to do with protesting. Because individuals in such circumstances don't have court or legislative protection in California, <span dir="ltr" id=":10j">they should be aware of just what kinds of information are stored in their mobile devices. Where possible, they should also consider taking technical steps, such as disk encryption, to protect their data.</span></p>
<p>Despite the obvious privacy concerns, Governor Brown’s statement noted “Courts are better suited to resolve the complex and case specific issues relating to constitutional search-and-seizures protections.”</p>
<p>But as law professor <a href="http://volokh.com/2011/10/10/governor-brown-vetoes-bill-on-searching-cell-phones-incident-to-arrest/">Orin Kerr explained</a>, Governor Brown actually has it backwards: a temporary legislative fix is much preferable to waiting for the courts.</p>
<blockquote><p>It is very difficult for courts to decide Fourth Amendment cases involving developing technologies like cell phones. Changing technology is a moving target, and courts move slowly: They are at a major institutional disadvantage in striking the balance properly when technology is in flux…In contrast, legislatures have a major institutional advantage over courts in this setting. They can better assess facts, more easily amend the law to reflect the latest technology, are not stuck following precedents, can adopt more creative regulatory solutions, and can act without a case or controversy.</p></blockquote>
<p>In fact, just last week, the United States Supreme Court declined to hear an appeal of <i>California v. Diaz</i>, ensuring the ultimate issue would remain unresolved by the nation’s highest court in the near future.</p>
<p>SB 914 was a much-needed fix for privacy violations happening <i>now</i>. Two cases, both decided in the last few weeks, are stark examples of where the <i>Diaz</i> decision is rapidly taking us. The routine privacy violations that EFF predicted would happen are now real and dangerous and we need legislative action to correct them.</p>
<p>In <i><a href="https://eff.org/sites/default/files/Juvenile.PDF">In re Alfredo C</a> </i>(PDF), police arrested a juvenile suspected of vandalism for spray painting graffiti in an alley. Despite being caught literally red handed, with spray paint on his hands and clothing, officers searched the juvenile, found a digital camera, and searched it without a warrant. The search was found reasonable on the basis of <i>Diaz</i>.</p>
<p>Similarly, in <a href="https://eff.org/sites/default/files/Nottoli.pdf"><i>People v. Nottoli</i></a>, (PDF) the defendant was pulled over for speeding. While talking with the defendant, officers suspected he was under the influence of drugs and placed him under arrest. Despite finding plenty of evidence of drug use in the defendant’s car, officers decided to nonetheless search his cell phone without a warrant. Again, the court found that the opinion in <i>Diaz</i> justified the search.</p>
<p>While Governor Brown’s veto of SB 914 is a setback for cell phone privacy, we will continue to fight for your rights. With strong support from both parties in the California state legislature, as soon as the bill can be brought up again, EFF will make sure Governor Brown reconsiders his extremely disappointing decision.</p>
</div></div></div><div class="field field-name-field-related-cases field-type-node-reference field-label-above"><div class="field-label">Related Cases:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/ru/cases/supreme-court-cases-cell-phone-searches">Riley v. California and United States v. Wurie</a></div></div></div><div class="share-links" style="margin-bottom:10px"><br/>Share this: <a href="https://twitter.com/intent/tweet?text=Governor%20Brown%20Vetoes%20Warrant%20Protection%20for%20Cell%20Phones&amp;url=https%3A//www.eff.org/ru/deeplinks/2011/10/governor-brown-vetoes-warrant-protection-cell-phones&amp;related=eff&amp;via=eff" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/twitter48.png" alt="Share on Twitter" /></a> <a href="https://www.facebook.com/share.php?t=Governor%20Brown%20Vetoes%20Warrant%20Protection%20for%20Cell%20Phones&amp;u=https%3A//www.eff.org/ru/deeplinks/2011/10/governor-brown-vetoes-warrant-protection-cell-phones" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/facebook48.png" alt="Share on Facebook" /></a> <a href="https://plus.google.com/share?url=https%3A//www.eff.org/ru/deeplinks/2011/10/governor-brown-vetoes-warrant-protection-cell-phones" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/gplus48.png" alt="Share on Google+" /></a> <a href="https://sharetodiaspora.github.com/?title=Governor%20Brown%20Vetoes%20Warrant%20Protection%20for%20Cell%20Phones&amp;url=https%3A//www.eff.org/ru/deeplinks/2011/10/governor-brown-vetoes-warrant-protection-cell-phones" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/diaspora48.png" alt="Share on Diaspora" /></a> <a href="https://supporters.eff.org/join" style="background-color:#cc0000; color:#ffffff; text-decoration:none; cursor:pointer; padding:5px 8px; font-family:verdana; font-weight:bold; border-radius:8px; text-shadow: 1px 1px #660000; text-transform:uppercase;">Join EFF</a></div>Tue, 11 Oct 2011 23:51:40 +0000Trevor Timm67531 at https://www.eff.orgAnnouncementCommentaryPrivacySearch Incident to ArrestEFF-Supported Bill Requiring Warrant for Cell Phone Searches Passes CA Legislature, Goes to Gov. Brownhttps://www.eff.org/ru/deeplinks/2011/09/eff-supported-bill-requiring-warrant-cell-phone
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>In May, <a href="https://www.eff.org/deeplinks/2011/05/eff-supports-california-bill-requiring-police-get-warrant-to-search-cell-phone">we asked EFF members</a> to write their California legislators and urge them to support <a href="http://www.leginfo.ca.gov/cgi-bin/postquery?bill_number=sb_914&amp;sess=CUR&amp;house=S">SB 914</a>, a bill that requires the police to obtain a search warrant before searching a recent arrestee’s cell phone.</p>
<p>EFF is happy to report that yesterday, the California Senate passed SB 914 with a bipartisan vote of 31-4. SB 914 already passed in the California Assembly in August on a 28-9 bipartisan vote, and is now on its way to Governor Brown's desk.</p>
<p>Introduced by California Senator Mark Leno, and sponsored by the <a href="http://www.aclunc.org"></a>Northern California ACLU and the <a href="http://www.firstamendmentcoalition.org"></a>First Amendment Coalition, SB 914 was intended to reverse the California Supreme Court's decision in <i>People v. Diaz</i>, which permitted police officers to search the content of a person's cell phone under a narrow Fourth Amendment exception permitting warrantless searches of the area immediately around a recent arrestee as "incident to arrest."</p>
<p>We hope and expect that Governor Brown will sign SB 914 into law despite the furious opposition of law enforcement. Cell phones contain a treasure trove of personal information, far beyond a person's call history, that deserves protection from the prying eyes of the police. Without SB 914, officers can use a pretextual arrest to casually browse the data on a person's cell phone for any reason, even if that person is never charged with a crime. Without requiring a search warrant, officers can search any arrested person's cell phone, even when they don't suspect there is any evidence of a crime on the device. SB 914 doesn’t impede law enforcement’s ability to investigate crimes; it just extends the Fourth Amendment to the contents of cell phones, requiring officers to show a judge there is probable cause that the phone has evidence of a crime <i>before</i> it is searched.</p>
<p>EFF looks forward to Governor Brown following the California legislature’s lead in protecting the private data stored on cell phones and make SB 914 the law.</p>
</div></div></div><div class="field field-name-field-related-cases field-type-node-reference field-label-above"><div class="field-label">Related Cases:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/ru/cases/supreme-court-cases-cell-phone-searches">Riley v. California and United States v. Wurie</a></div><div class="field-item odd"><a href="/ru/cases/oregon-v-nix">Oregon v. Nix</a></div></div></div><div class="share-links" style="margin-bottom:10px"><br/>Share this: <a href="https://twitter.com/intent/tweet?text=EFF-Supported%20Bill%20Requiring%20Warrant%20for%20Cell%20Phone%20Searches%20Passes%20CA%20Legislature%2C%20Goes%20to%20Gov.%20Brown&amp;url=https%3A//www.eff.org/ru/deeplinks/2011/09/eff-supported-bill-requiring-warrant-cell-phone&amp;related=eff&amp;via=eff" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/twitter48.png" alt="Share on Twitter" /></a> <a href="https://www.facebook.com/share.php?t=EFF-Supported%20Bill%20Requiring%20Warrant%20for%20Cell%20Phone%20Searches%20Passes%20CA%20Legislature%2C%20Goes%20to%20Gov.%20Brown&amp;u=https%3A//www.eff.org/ru/deeplinks/2011/09/eff-supported-bill-requiring-warrant-cell-phone" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/facebook48.png" alt="Share on Facebook" /></a> <a href="https://plus.google.com/share?url=https%3A//www.eff.org/ru/deeplinks/2011/09/eff-supported-bill-requiring-warrant-cell-phone" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/gplus48.png" alt="Share on Google+" /></a> <a href="https://sharetodiaspora.github.com/?title=EFF-Supported%20Bill%20Requiring%20Warrant%20for%20Cell%20Phone%20Searches%20Passes%20CA%20Legislature%2C%20Goes%20to%20Gov.%20Brown&amp;url=https%3A//www.eff.org/ru/deeplinks/2011/09/eff-supported-bill-requiring-warrant-cell-phone" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/diaspora48.png" alt="Share on Diaspora" /></a> <a href="https://supporters.eff.org/join" style="background-color:#cc0000; color:#ffffff; text-decoration:none; cursor:pointer; padding:5px 8px; font-family:verdana; font-weight:bold; border-radius:8px; text-shadow: 1px 1px #660000; text-transform:uppercase;">Join EFF</a></div>Sat, 03 Sep 2011 00:08:41 +0000Hanni Fakhoury61503 at https://www.eff.orgAnnouncementSearch Incident to ArrestLine Noise: Electronic Device Search and Seizurehttps://www.eff.org/ru/deeplinks/2011/08/line-noise-electronic-device-search-and-seizure
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>EFF activist Eva Galperin interviews EFF criminal defense attorney, Hanni Fakhoury, on the newest edition of <a href="https://www.eff.org/linenoise">Line Noise</a>, the EFF podcast. Whether law enforcement wants to search your home computer, tries to browse through your smart phone at a traffic stop, or seeks to thumb through your camera at customs, you should know your rights. </p>
<p>Learn more about your privacy rights by reading our <a href="https://www.eff.org/wp/know-your-rights">Know Your Rights</a> guide, or test your skills with our <a href="https://www.eff.org/pages/know-your-digital-rights-quiz">quiz</a>.</p>
<p>This edition of Line Noise was recorded on-site from the San Francisco studio of <a href="http://www.Bamm.tv">Bamm.tv</a></p>
</div></div></div><div class="share-links" style="margin-bottom:10px"><br/>Share this: <a href="https://twitter.com/intent/tweet?text=Line%20Noise%3A%20Electronic%20Device%20Search%20and%20Seizure&amp;url=https%3A//www.eff.org/ru/deeplinks/2011/08/line-noise-electronic-device-search-and-seizure&amp;related=eff&amp;via=eff" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/twitter48.png" alt="Share on Twitter" /></a> <a href="https://www.facebook.com/share.php?t=Line%20Noise%3A%20Electronic%20Device%20Search%20and%20Seizure&amp;u=https%3A//www.eff.org/ru/deeplinks/2011/08/line-noise-electronic-device-search-and-seizure" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/facebook48.png" alt="Share on Facebook" /></a> <a href="https://plus.google.com/share?url=https%3A//www.eff.org/ru/deeplinks/2011/08/line-noise-electronic-device-search-and-seizure" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/gplus48.png" alt="Share on Google+" /></a> <a href="https://sharetodiaspora.github.com/?title=Line%20Noise%3A%20Electronic%20Device%20Search%20and%20Seizure&amp;url=https%3A//www.eff.org/ru/deeplinks/2011/08/line-noise-electronic-device-search-and-seizure" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/diaspora48.png" alt="Share on Diaspora" /></a> <a href="https://supporters.eff.org/join" style="background-color:#cc0000; color:#ffffff; text-decoration:none; cursor:pointer; padding:5px 8px; font-family:verdana; font-weight:bold; border-radius:8px; text-shadow: 1px 1px #660000; text-transform:uppercase;">Join EFF</a></div>Wed, 03 Aug 2011 19:57:32 +0000rainey Reitman61460 at https://www.eff.orgPrivacyTravel ScreeningSearch Incident to ArrestComputer Search and Seizure: A Three-Panel Cartoonhttps://www.eff.org/ru/deeplinks/2011/07/computer-search-and-seizure-three-panel-cartoon
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><img src="https://www.eff.org/files/filenode/encryption-1c.png" width="610" height="235" /></p>
<p>Think you know what to do when law enforcement seeks access to your digital device? Test your skills with <a href="https://www.eff.org/pages/know-your-digital-rights-quiz">our online quiz</a>. Then brush up on your knowledge with our <a href="https://www.eff.org/wp/know-your-rights">Know Your Rights</a> whitepaper.</p>
<p>We also highly recommend you print our <a href="https://www.eff.org/files/EFF_Police_Tips_2011.pdf">one-page guide</a> explaining what to do when the police ask for access to your device. Leave it by your workstation, tape it up in your server room, and slip a copy into your laptop case—anywhere you have sensitive information on a digital device.</p>
</div></div></div><div class="share-links" style="margin-bottom:10px"><br/>Share this: <a href="https://twitter.com/intent/tweet?text=Computer%20Search%20and%20Seizure%3A%20A%20Three-Panel%20Cartoon&amp;url=https%3A//www.eff.org/ru/deeplinks/2011/07/computer-search-and-seizure-three-panel-cartoon&amp;related=eff&amp;via=eff" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/twitter48.png" alt="Share on Twitter" /></a> <a href="https://www.facebook.com/share.php?t=Computer%20Search%20and%20Seizure%3A%20A%20Three-Panel%20Cartoon&amp;u=https%3A//www.eff.org/ru/deeplinks/2011/07/computer-search-and-seizure-three-panel-cartoon" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/facebook48.png" alt="Share on Facebook" /></a> <a href="https://plus.google.com/share?url=https%3A//www.eff.org/ru/deeplinks/2011/07/computer-search-and-seizure-three-panel-cartoon" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/gplus48.png" alt="Share on Google+" /></a> <a href="https://sharetodiaspora.github.com/?title=Computer%20Search%20and%20Seizure%3A%20A%20Three-Panel%20Cartoon&amp;url=https%3A//www.eff.org/ru/deeplinks/2011/07/computer-search-and-seizure-three-panel-cartoon" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/diaspora48.png" alt="Share on Diaspora" /></a> <a href="https://supporters.eff.org/join" style="background-color:#cc0000; color:#ffffff; text-decoration:none; cursor:pointer; padding:5px 8px; font-family:verdana; font-weight:bold; border-radius:8px; text-shadow: 1px 1px #660000; text-transform:uppercase;">Join EFF</a></div>Fri, 15 Jul 2011 22:04:41 +0000rainey Reitman61441 at https://www.eff.orgCommentaryPrivacyCoders' Rights ProjectSearch Incident to ArrestJoin EFF in Supporting California Bill That Requires Police to Get a Warrant Before Searching Cell Phoneshttps://www.eff.org/ru/deeplinks/2011/05/eff-supports-california-bill-requiring-police-get-warrant-to-search-cell-phone
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>EFF is proud to support <a href="http://www.leginfo.ca.gov/cgi-bin/postquery?bill_number=sb_914&amp;sess=CUR&amp;house=S">SB 914</a>, a bill that requires the police to obtain a warrant before searching a recent arrestee’s cell phone.</p>
<p>SB 914 is a response to a January decision of the California Supreme Court in <i>People v. Diaz</i>. In that case, the court authorized police officers to search any person’s cell phone after they had been arrested under a narrow exception to the Fourth Amendment’s warrant requirement that permits law enforcement officers to search the area immediately around a person “incident to arrest.” This exception has two traditional rationales: ensuring officer safety by allowing a search for weapons, and protecting evidence from immediate destruction. By permitting the warrantless search of a cell phone under this exception, the Court gave officers carte blanche to rummage through all the private data and information people keep on their cell phones – emails, text messages, call history, websites they’ve visited, and their calendars, to name just a few examples –regardless of whether the police believed there was evidence of the crime on the cell phone and without any judicial oversight.</p>
<p>Courts throughout the country have been grappling with this issue and have reached conflicting results, with some courts <a href="http://volokh.com/2010/12/14/georgia-court-of-appeals-including-feddie-weighs-in-on-search-incident-to-arrest-for-cell-phones"></a>authorizing warrantless searches of cell phones and others <a href="http://www.sconet.state.oh.us/PIO/summaries/2009/1215/081781.asp">not</a>. In an <a href="https://www.eff.org/files/filenode/oregon_v_nix/nix_amicus_final.pdf">amicus brief</a> (pdf) recently filed before the Oregon Supreme Court, <a href="https://www.eff.org/cases/oregon-v-nix">EFF argued</a> that warrantless searches of cell phones incident to arrest violate the Constitution’s right to privacy. This is all the more troubling because cell phones pose no danger to the police, the threat of destruction of evidence can be easily remedied through simple preservation methods, and many arrests do not result in criminal prosecution at all.</p>
<p>SB 914 is a proactive attempt to legislate Constitutional protection and reverse <i>Diaz’s</i> dangerous course. Introduced by California Senator Mark Leno and sponsored by the Northern California ACLU, the bill reasonably balances law enforcement needs with people’s privacy rights by allowing the police to look through cell phones only when they have convinced a magistrate judge there is likely evidence of the crime on the phone.</p>
<p>The bill is expected to be on the Senate floor soon. All Californians should ask their state lawmakers to support SB 914 and tell law enforcement that if they want access to the personal and private data stored on cell phones, they need to come back with a warrant.</p>
</div></div></div><div class="field field-name-field-related-cases field-type-node-reference field-label-above"><div class="field-label">Related Cases:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/ru/cases/supreme-court-cases-cell-phone-searches">Riley v. California and United States v. Wurie</a></div><div class="field-item odd"><a href="/ru/cases/oregon-v-nix">Oregon v. Nix</a></div></div></div><div class="share-links" style="margin-bottom:10px"><br/>Share this: <a href="https://twitter.com/intent/tweet?text=Join%20EFF%20in%20Supporting%20California%20Bill%20That%20Requires%20Police%20to%20Get%20a%20Warrant%20Before%20Searching%20Cell%20Phones&amp;url=https%3A//www.eff.org/ru/deeplinks/2011/05/eff-supports-california-bill-requiring-police-get-warrant-to-search-cell-phone&amp;related=eff&amp;via=eff" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/twitter48.png" alt="Share on Twitter" /></a> <a href="https://www.facebook.com/share.php?t=Join%20EFF%20in%20Supporting%20California%20Bill%20That%20Requires%20Police%20to%20Get%20a%20Warrant%20Before%20Searching%20Cell%20Phones&amp;u=https%3A//www.eff.org/ru/deeplinks/2011/05/eff-supports-california-bill-requiring-police-get-warrant-to-search-cell-phone" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/facebook48.png" alt="Share on Facebook" /></a> <a href="https://plus.google.com/share?url=https%3A//www.eff.org/ru/deeplinks/2011/05/eff-supports-california-bill-requiring-police-get-warrant-to-search-cell-phone" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/gplus48.png" alt="Share on Google+" /></a> <a href="https://sharetodiaspora.github.com/?title=Join%20EFF%20in%20Supporting%20California%20Bill%20That%20Requires%20Police%20to%20Get%20a%20Warrant%20Before%20Searching%20Cell%20Phones&amp;url=https%3A//www.eff.org/ru/deeplinks/2011/05/eff-supports-california-bill-requiring-police-get-warrant-to-search-cell-phone" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/diaspora48.png" alt="Share on Diaspora" /></a> <a href="https://supporters.eff.org/join" style="background-color:#cc0000; color:#ffffff; text-decoration:none; cursor:pointer; padding:5px 8px; font-family:verdana; font-weight:bold; border-radius:8px; text-shadow: 1px 1px #660000; text-transform:uppercase;">Join EFF</a></div>Thu, 19 May 2011 20:17:54 +0000Hanni Fakhoury61384 at https://www.eff.orgLegislative AnalysisKnow Your RightsPrivacySearch Incident to ArrestEFF to Oregon Supreme Court: Police Need Warrant to Search Arrestees' Cell Phoneshttps://www.eff.org/ru/press/archives/2011/04/04
<div class="field field-name-field-pr-subhead field-type-text field-label-hidden"><div class="field-items"><div class="field-item even">Law Enforcement Shouldn&#039;t Have Free Rein to Rummage Through Data</div></div></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>San Francisco - The Electronic Frontier Foundation (EFF) urged the Oregon Supreme Court to block warrantless searches of arrestees' cell phones Friday, arguing in an amicus brief that granting law enforcement free rein to search data on the devices violates basic privacy protections guaranteed by the Constitution.</p>
<p>Other state supreme courts have considered the issue, but they have split in their rulings.</p>
<p>In this case, a criminal suspect was arrested and placed in a holding cell. Forty minutes after the arrest, without a warrant, an investigator fished through the suspect's cell phone looking for evidence related to his alleged crime. Law enforcement officials claim they didn't need a warrant because the search was "incident to arrest" -- an exception to the warrant requirement intended to allow officers to perform a search for weapons or to prevent evidence from being destroyed in exigent circumstances.</p>
<p>"This is an empty excuse from the police -- the suspect was in custody and unable to destroy evidence on his cell phone," said EFF Senior Staff Attorney Marcia Hofmann. "The Fourth Amendment protects us from unreasonable intrusions by the police and ensures that a neutral magistrate decides when the police can search private information. There was no need for the police to sidestep the warrant process here. If courts give police the freedom to rummage through the cell phones of anyone they arrest, then the constitutional protection of the warrant process is meaningless."</p>
<p>The average cell phone now includes much more than your calling history. It holds address books, calendars, and emails -- along with websites you've visited, pictures of your family and friends, and often things like lists of questions to ask your doctor or your accountant. This makes questions of privacy in cell phone data critically important.</p>
<p>"Of course, criminal suspects could have information on their cell phones that might be of interest to police. When investigators have enough information to get a warrant, they should be able to search them," said Hofmann. "But judges should not allow a narrow exception to the warrant requirement to swallow the basic rule meant to protect everyone's privacy rights."</p>
<p>EFF's local counsel in this case is J. Ashlee Albies of Creighton &amp; Rose, PC. Mr. Nix is represented by Bronson James, of JDL Attorneys, LLP. Petitioner's briefing is available at http://www.jdlattorneys.com.</p>
<p>For EFF's full amicus brief:<br />
https://www.eff.org/files/filenode/oregon_v_nix/nix_amicus_final.pdf</p>
<p>Contact:</p>
<p>Marcia Hofmann<br />
Senior Staff Attorney<br />
Electronic Frontier Foundation<br />
marcia@eff.org</p>
</div></div></div><div class="share-links" style="margin-bottom:10px"><br/>Share this: <a href="https://twitter.com/intent/tweet?text=EFF%20to%20Oregon%20Supreme%20Court%3A%20Police%20Need%20Warrant%20to%20Search%20Arrestees%27%20Cell%20Phones&amp;url=https%3A//www.eff.org/ru/press/archives/2011/04/04&amp;related=eff&amp;via=eff" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/twitter48.png" alt="Share on Twitter" /></a> <a href="https://www.facebook.com/share.php?t=EFF%20to%20Oregon%20Supreme%20Court%3A%20Police%20Need%20Warrant%20to%20Search%20Arrestees%27%20Cell%20Phones&amp;u=https%3A//www.eff.org/ru/press/archives/2011/04/04" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/facebook48.png" alt="Share on Facebook" /></a> <a href="https://plus.google.com/share?url=https%3A//www.eff.org/ru/press/archives/2011/04/04" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/gplus48.png" alt="Share on Google+" /></a> <a href="https://sharetodiaspora.github.com/?title=EFF%20to%20Oregon%20Supreme%20Court%3A%20Police%20Need%20Warrant%20to%20Search%20Arrestees%27%20Cell%20Phones&amp;url=https%3A//www.eff.org/ru/press/archives/2011/04/04" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/diaspora48.png" alt="Share on Diaspora" /></a> <a href="https://supporters.eff.org/join" style="background-color:#cc0000; color:#ffffff; text-decoration:none; cursor:pointer; padding:5px 8px; font-family:verdana; font-weight:bold; border-radius:8px; text-shadow: 1px 1px #660000; text-transform:uppercase;">Join EFF</a></div>Mon, 04 Apr 2011 15:43:01 +0000Rebecca Jeschke62240 at https://www.eff.orgEFF Asks Court to Suppress Evidence Illegally Gathered From Password-Protected Phonehttps://www.eff.org/ru/deeplinks/2010/02/eff-asks-court-suppress-evidence-illegally
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>Our cell phones aren't just for calls anymore. They hold our address books, our calendars, our emails, and our grocery lists. They may even include things like a list of questions to ask your doctor, pictures of your girlfriend, or URLs of web sites you've visited. When can police search your phone and look at all this information?</p>
<p>That's the question that EFF is asking a court in California to consider. Police in Daly City, California seized a suspect's iPhone during his arrest. Hours later, investigators bypassed the password and searched through the data on the device without a search warrant. After the officers realized that the information was too extensive to write down, they finally obtained a warrant to search the phone.</p>
<p>EFF has urged the court to suppress evidence gathered by police from the suspect's phone during the warrantless search, including contacts, called phone numbers, emails, text messages, Internet search history, and photos. EFF has also asked the judge to quash the warrant that was eventually issued in part based on the information illegally accessed on the phone.</p>
<p>Of course, criminal suspects will have a lot of information on their cell phones that might be of interest to police, and when investigators have enough evidence to get a warrant, they should be able to search these devices. But if the police can search anyone's cell phone at any time, then everyone's privacy is at risk.</p>
<p>The court will hear the motion on February 18 at 9:00 a.m. in Redwood City, California. </p>
</div></div></div><div class="field field-name-field-related-cases field-type-node-reference field-label-above"><div class="field-label">Related Cases:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/ru/cases/san-mateo">San Mateo Court Litigation</a></div></div></div><div class="share-links" style="margin-bottom:10px"><br/>Share this: <a href="https://twitter.com/intent/tweet?text=EFF%20Asks%20Court%20to%20Suppress%20Evidence%20Illegally%20Gathered%20From%20Password-Protected%20Phone&amp;url=https%3A//www.eff.org/ru/deeplinks/2010/02/eff-asks-court-suppress-evidence-illegally&amp;related=eff&amp;via=eff" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/twitter48.png" alt="Share on Twitter" /></a> <a href="https://www.facebook.com/share.php?t=EFF%20Asks%20Court%20to%20Suppress%20Evidence%20Illegally%20Gathered%20From%20Password-Protected%20Phone&amp;u=https%3A//www.eff.org/ru/deeplinks/2010/02/eff-asks-court-suppress-evidence-illegally" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/facebook48.png" alt="Share on Facebook" /></a> <a href="https://plus.google.com/share?url=https%3A//www.eff.org/ru/deeplinks/2010/02/eff-asks-court-suppress-evidence-illegally" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/gplus48.png" alt="Share on Google+" /></a> <a href="https://sharetodiaspora.github.com/?title=EFF%20Asks%20Court%20to%20Suppress%20Evidence%20Illegally%20Gathered%20From%20Password-Protected%20Phone&amp;url=https%3A//www.eff.org/ru/deeplinks/2010/02/eff-asks-court-suppress-evidence-illegally" target="_blank"><img src="https://www.eff.org/sites/all/themes/frontier/supporters/images/diaspora48.png" alt="Share on Diaspora" /></a> <a href="https://supporters.eff.org/join" style="background-color:#cc0000; color:#ffffff; text-decoration:none; cursor:pointer; padding:5px 8px; font-family:verdana; font-weight:bold; border-radius:8px; text-shadow: 1px 1px #660000; text-transform:uppercase;">Join EFF</a></div>Mon, 08 Feb 2010 22:09:59 +0000Marcia Hofmann60923 at https://www.eff.orgPrivacySearch Incident to Arrest